REPUBLIC NEW YORK CAPITAL II
$200,000,000
7.53% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
REPUBLIC NEW YORK CORPORATION
REGISTRATION AGREEMENT
New York, New York
December 4, 1996
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Republic New York Capital II, a Delaware statutory
business trust (the "Trust"), and Republic New York
Corporation, a Maryland corporation (the "Company"), as
guarantor, propose to issue and sell to Deutsche Xxxxxx
Xxxxxxxx (the "Purchaser"), upon the terms set forth in a
purchase agreement of even date herewith (the "Purchase
Agreement"), 200,000 of the Trust's 7.53% Capital
Securities, liquidation amount $1,000 per Capital Security
(the "Capital Securities" and together with the guarantee by
the Company of the payment of the Capital Securities to the
extent set forth in the Guarantee, the "Pass-through
Securities") (the "Initial Placement"). The proceeds of the
sale by the Trust of the Pass-through Securities and its
7.53% Common Securities, liquidation amount $1,000 per
Common Security (the "Common Securities"), are to be
invested in the 7.53% Junior Subordinated Debt Securities of
the Company having an aggregate principal amount equal to
the aggregate liquidation amount of the Capital Securities
and the Common Securities (the "Junior Subordinated Debt
Securities"). As an inducement to the Purchaser to enter
into the Purchase Agreement and in satisfaction of a
condition to your obligations thereunder, the Trust and the
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Company agree with you, (i) for your benefit and (ii) for
the benefit of the holders from time to time (each of the
foregoing a "Holder" and together the "Holders") of the
Securities (as defined herein) or the Exchange Securities
(as defined herein), as follows:
1. Definitions. Capitalized terms used herein
without definition shall have their respective meanings set
forth in the Purchase Agreement. As used in this Agreement,
the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
"Additional Distributions" has the meaning given
such term in Section 7(a) hereof.
"Additional Interest" has the meaning given such
term in Section 7(a) hereof.
"Affiliate" of any specified person means any
other person which, directly or indirectly, is in control
of, is controlled by, or is under common control with, such
specified person.
"Capital Securities" has the meaning set forth in
the preamble hereto.
"Closing Date" has the meaning given such term in
the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning set forth in
the preamble hereto.
"Declaration" means the Amended and Restated
Declaration of Trust relating to the Capital Securities and
the Exchange Capital Securities dated as of December 4,
1996, among the Company, as Depositor, Xxxxxx X. Xxxxxxx and
Xxxxxxx Xxxxx, as administrative trustees, the Property
Trustee and Bankers Trust (Delaware), a Delaware
corporation, as Delaware trustee, as the same may be amended
from time to time in accordance with the terms thereof.
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"Distribution Event" shall mean the distribution
of Junior Subordinated Debt Securities or Exchange Junior
Subordinated Debt Securities, as the case may be, to the
holders of Capital Securities or Exchange Capital
Securities, as the case may be, as provided in the
Declaration.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.
"Exchange Capital Securities" means securities of
the Trust to be issued under the Declaration and which are
identical in all material respects to the Capital Securities
(except that the distribution rate step-up provisions and
the transfer restrictions will be modified or eliminated,
as appropriate).
"Exchange Guarantee" means the guarantee by the
Company of the Exchange Capital Securities, identical in all
material respects to the Guarantee.
"Exchange Junior Subordinated Debt Securities"
means debt securities of the Company to be issued under the
Junior Subordinated Indenture and which are identical in all
material respects to the Junior Subordinated Debt Securities
(except that the interest rate step-up provisions and the
transfer restrictions will be modified or eliminated, as
appropriate).
"Exchange Offer Registration Period" means the
180-day period following the consummation of the Registered
Exchange Offer, exclusive of any period during which any
stop order shall be in effect suspending the effectiveness
of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a
registration statement of the Trust and the Company on an
appropriate form under the Act with respect to the
Registered Exchange Offer (and, if a Distribution Event
shall not have occurred prior to the effectiveness of such
Exchange Offer Registration Statement and the Company shall
not have elected to include the Junior Subordinated Debt
Securities held by the Trust in the Registered Exchange
Offer pursuant to Section 2(g) hereof, with respect to the
distribution of the Junior Subordinated Debt Securities upon
the occurrence of a Distribution Event), and all amendments
and supplements to such registration statement, including
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post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Pass-through Securities" means the
Exchange Capital Securities together with the Exchange
Guarantee.
"Exchange Securities" means (i) if a Distribution
Event shall not have occurred prior to the Registered
Exchange Offer, (a) the Exchange Pass-through Securities and
(b) if the Company shall elect to include the Junior
Subordinated Debt Securities held by the Trust in the
Registered Exchange Offer pursuant to Section 2(g) hereof,
the Exchange Junior Subordinated Debt Securities or (ii) if
a Distribution Event shall have occurred prior to the
Registered Exchange Offer, the Exchange Junior Subordinated
Debt Securities.
"Exchanging Dealer" means any Holder (which may
include the Purchaser) which is a broker-dealer electing to
exchange Securities acquired for its own account as a result
of market-making activities or other trading activities for
Exchange Securities.
"Final Memorandum" has the meaning set forth in
the Purchase Agreement.
"Guarantee" means the guarantee by the Company of
the Capital Securities and the Common Securities pursuant to
the Guarantee Agreement dated as of December 4, 1996 between
the Company and the Guarantee Trustee.
"Guarantee Trustee", "Indenture Trustee" and
"Property Trustee" each means Bankers Trust Company, a
New York banking corporation.
"Holder" has the meaning set forth in the preamble
hereto.
"Initial Placement" has the meaning set forth in
the preamble hereto.
"Junior Subordinated Debt Securities" has the
meaning set forth in the preamble hereto.
"Junior Subordinated Indenture" means the Junior
Subordinated Indenture relating to the Junior Subordinated
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Debt Securities and the Exchange Junior Subordinated Debt
Securities dated as of November 27, 1996 between the Company
and the Indenture Trustee.
"Majority Holders" means (i) if no Distribution
Event has occurred, the Holders of a majority of the
aggregate liquidation amount of securities registered under
a Registration Statement and (ii) if a Distribution Event
has occurred, the Holders of a majority of the aggregate
principal amount of securities registered under the
Registration Statement.
"Managing Underwriters" means the investment
banker or investment bankers and manager or managers that
shall administer an underwritten offering.
"Pass-through Securities" has the meaning set
forth in the preamble hereto.
"Prospectus" means the prospectus included in any
Registration Statement (including a prospectus that
discloses information previously omitted from a prospectus
filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Securities
or the Exchange Securities, covered by such Registration
Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in
the preamble hereto.
"Purchaser" has the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" means the proposed
offer to the Holders to issue and deliver to such Holders a
like liquidation amount or principal amount, as the case may
be, of the Exchange Securities, in exchange for (i) if a
Distribution Event shall not have occurred, (a) the
Pass-Through Securities and (b) if the Company shall elect
to include the Junior Subordinated Debt Securities held by
the Trust in the Registered Exchange Offer pursuant to
Section 2(g) hereof, the Junior Subordinated Debt Securities
or (ii) if a Distribution Event shall have occurred, the
Junior Subordinated Debt Securities.
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"Registration Default" has the meaning given such
term in Section 7(a) hereof.
"Registration Statement" means any Exchange Offer
Registration Statement or Shelf Registration Statement that
covers any of the Securities or the Exchange Securities
pursuant to the provisions of this Agreement, and amendments
and supplements to such registration statement, including
post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Securities" means (i) if a Distribution Event
shall not have occurred, the Pass-through Securities and the
Junior Subordinated Debt Securities or (ii) if a
Distribution Event shall have occurred, the Junior
Subordinated Debt Securities.
"Shelf Registration" means a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning given
such term in Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf"
registration statement of the Trust and the Company pursuant
to the provisions of Section 3 hereof which covers some or
all of the Securities or the Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the
Commission, and amendments and supplements to such
registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
"Tax Contingency" has the meaning given such term
in Section 2(b) hereof.
"Tax Contingency Extension" has the meaning given
such term in Section 7(a) hereof.
"Trust" has the meaning set forth in the preamble
hereto.
"Trustee" means the Guarantee Trustee, the
Indenture Trustee or the Property Trustee, as applicable.
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"underwriter" means any underwriter of Securities
in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer; Resales of Exchange
Securities by Exchanging Dealers. (a) The Trust and the
Company shall prepare and, not later than 60 days following
the Closing Date, shall file with the Commission the
Exchange Offer Registration Statement. The Trust and the
Company shall use their best efforts to cause the Exchange
Offer Registration Statement to become effective under the
Act within 150 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Trust and the Company shall
pormptly commence the Registered Exchange Offer, it being
the objective of such Registered Exchange Offer to enable
each Holder electing to exchange Securities for Exchange
Securities (assuming that such Holder is not an affiliate of
the Trust or the Company within the meaning of the Act,
acquires the Exchange Securities in the ordinary course of
such Holder's business and has no arrangements with any
person to participate in the distribution (within the
meaning of the Act) of the Exchange Securities) to transfer
such Exchange Securities from and after their receipt
without any limitations or restricitons under the Act and
without material restriciions under the securities laws of a
substantial proportion of the several states of the United
States. Notwithstanding the foregoing (but subject to the
provisions of clause (ii) of Section 3 and clause (a)(iii)
of Section 7), in the event that the Company shall determine
that, or (ii) a material uncertainty exists as to whether,
consummation of the Registered Exchange Offer would result
in an adverse tax consequence to the Company (a "Tax
Contingency"), the Trust and the Company may elect to delay
commencement or consummation of the Registered Exchange
Offer until such Tax Contingency shall no longer exist or,
if the Company shall determine in good faith that such Tax
Contingency is in existence on the 240th day following the
Closing Date, to terminate the Registered Exchange Offer.
(c) In connection with the Registered Exchange
Offer, the Trust and the Company shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration
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Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Registered Exchange Offer open
for not less than 30 days after the date notice thereof is
mailed to the Holders (or longer if required by
applicable law);
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in
the Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Trust and the Company shall:
(i) accept for exchange all Securities tendered
and not validly withdrawn pursuant to the Registered
Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of tendered Securities, Exchange
Securities equal in liquidation amount or principal
amount, as the case may be, to the Securities of such
Holder so accepted for exchange therefor.
(e) The Purchaser and the Trust and the Company
acknowledge that, pursuant to interpretations by the
Commission's staff of Section 5 of the Act, and in the
absence of an applicable exemption therefrom, each
Exchanging Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Securities received
by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Securities acquired [for its
own account] as a result of market-making activities or
other trading activities. Accordingly, the Trust and the
Company shall:
(i) include the information set forth in Annex A
hereto on the cover of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section
setting forth details of the Registered Exchange Offer,
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and in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part
of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange
Offer Registration Statement continuously effective
under the Act during the Exchange Offer Registration
Period for delivery of the Prospectus forming a part
thereof by Exchanging Dealers in connection with sales
of Exchange Securities received pursuant to the
Registered Exchange Offer, as contemplated by
Section 4(h) below.
(f) In the event that the Purchaser determines
that it is not eligible to participate in the Registered
Exchange Offer with respect to the exchange of Securities
constituting any portion of its initial unsold allotment of
Securities, at the request of the Purchaser, the Company
shall issue and deliver to the Purchaser, in exchange for
such Securities, a like principal amount of Exchange
Securities (provided that such Exchange Securities shall
include legends with respect to restrictions on transfer).
The Trust and the Company shall seek to cause the CUSIP
Service Bureau to issue the same CUSIP number for such
Exchange Securities as for Exchange Securities issued
pursuant to the Registered Exchange Offer. The Purchaser
agrees to promptly notify the Company in writing following
the resale of its initial allotment of Securities.
(g) Notwithstanding anything in this Agreement to
the contrary, if a Distribution Event shall not have
occurred prior to the Registered Exchange Offer, the Company
may offer to, and the Trust shall agree to, exchange the
Junior Subordinated Debt Securities held by the Trust for an
identical principal amount of Exchange Junior Subordinated
Debt Securities as part of the Registered Exchange Offer;
provided, however, that, until a Distribution Event shall
have occurred, such Exchange Junior Subordinated Debt
Securities shall include appropriate legends with respect to
transfer restrictions.
3. Shelf Registration. If (i) because of any
change in law or applicable interpretations thereof by the
Commission's staff, the Trust and the Company determine upon
advice of their outside counsel that they are not permitted
10
to effect the Registered Exchange Offer as contemplated by
Section 2 hereof or (ii) for any other reason the Registered
Exchange Offer is not consummated within 180 days (or, if
the Company shall determine in good faith that a Tax
Contingency exists on such 180th day, within 240 days) of
the Closing Date, or (iii) the Purchaser so requests with
respect to Securities held by it following consummation of
the Registered Exchange Offer, or (iv) any Holder at the
time of the Registered Exchange Offer (other than the
Purchaser) is not eligible to participate in the Registered
Exchange Offer or (v) in the event that the Purchaser
participates in the Registered Exchange Offer or acquires
Exchange Securities pursuant to Section 2(f) hereof and the
Purchaser does not receive freely tradeable Exchange
Securities in exchange for Securities constituting any
portion of an unsold allotment (it being understood that,
for purposes of this Section 3, (x) the requirement that the
Purchaser deliver a Prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the
Act in connection with sales of Exchange Securities acquired
in exchange for such Securities shall result in such
Exchange Securities being not "freely tradeable" but (y) the
requirement that an Exchanging Dealer deliver a Prospectus
in connection with sales of Exchange Securities acquired in
the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other
trading activities shall not result in such Exchange
Securities being not "freely tradeable"), the following
provisions shall apply:
(a) The Trust and the Company shall, as promptly
as practicable (but in no event more than 60 days after so
required or requested pursuant to this Section 3), file with
the Commission and thereafter use their best efforts to
cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the
Securities or the Exchange Securities, as applicable, by the
applicable Holders from time to time in accordance with the
methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided,
however, that with respect to Exchange Securities received
by the Purchaser in exchange for Securities constituting any
portion of an unsold allotment, the Trust and the Company
may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the
Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508,
as applicable, in satisfaction of their obligations under
11
this paragraph (a) with respect thereto, and any such
Exchange Offer Registration Statement, as so amended, shall
be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement.
(b) The Trust and the Company shall use their
best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus
forming part thereof to be usable by the applicable Holders
for a period of three years (or, if Rule 144(k) is amended
to provide a shorter restrictive period, such shorter
period) from the Closing Date or such shorter period that
will terminate when all the Securities or Exchange
Securities, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the
"Shelf Registration Period").
4. Registration Procedures. In connection with
any Shelf Registration Statement and, to the extent
specified, any Exchange Offer Registration Statement, the
following provisions shall apply:
(a) The Trust and the Company shall furnish to
the Purchaser, prior to the filing thereof with the
Commission, a copy of any Shelf Registration Statement
and any Exchange Offer Registration Statement, and each
amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein and shall use
their best efforts to reflect in each such document,
when so filed with the Commission, such comments as you
reasonably may propose.
(b) The Trust and the Company shall ensure that
(i) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all
material respects with the Act and the rules and
regulations thereunder, (ii) any Registration Statement
and any amendment thereto does not, when it becomes
effective, 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 and (iii) any Prospectus forming
part of any Registration Statement, and any amendment
or supplement to such Prospectus, does not, during the
period when delivery thereof is required, include an
untrue statement of a material fact or omit to state a
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material fact necessary in order to make the
statements, in the light of the circumstances under
which they were made, not misleading.
(c) (1) The Trust and the Company shall advise
the Purchaser and, in the case of a Shelf Registration
Statement, the Holders of securities covered thereby,
and, if requested by you or any such Holder, confirm
such advice in writing:
(i) when a Registration Statement and any
amendment thereto has been filed with the
Commission and when the Registration Statement or
any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for
amendments or supplements to the Registration
Statement or the Prospectus included therein or
for additional information.
(2) The Trust and the Company shall advise the
Purchaser and, in the case of a Shelf Registration
Statement, the Holders of securities covered thereby,
and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer which has provided in
writing to the Trust and the Company a telephone or
facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging D
ealer, confirm such advice in writing:
(i) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Company or the
Trust of any notification with respect to the
suspension of the qualification of the securities
included therein for sale in any jurisdiction or
the initiation or threatening of any proceeding
for such purpose; and
(iii) of the happening, during the period when
delivery of a Prospectus is required, of any event
that requires the making of any changes in the
Registration Statement or the Prospectus so that,
as of such date, the statements therein are not
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misleading and do not omit to state a material
fact required to be stated therein or necessary to
make the statements therein (in the case of the
Prospectus, in light of the circumstances under
which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend
the use of the Prospectus until the requisite
changes have been made).
(d) The Trust and the Company shall use their
best efforts to obtain the withdrawal of any order
suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to
each Holder of securities included within the coverage
of any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and
any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder
so requests in writing, all exhibits (including those
incorporated by reference).
(f) The Trust and the Company shall, during the
Shelf Registration Period, deliver to each Holder of
securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies
of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Trust and
the Company consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the
securities covered by the Prospectus or any amendment
or supplement thereto.
(g) The Trust and the Company shall furnish to
each Exchanging Dealer which so requests, without
charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment
thereto, including financial statements and schedules,
any documents incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all
exhibits thereto (including those incorporated by
reference).
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(h) The Trust and the Company shall, during the
Exchange Offer Registration Period, promptly deliver to
each Exchanging Dealer, without charge, as many copies
of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in
connection with a sale of Exchange Securities received
by it pursuant to the Registered Exchange Offer; and
the Trust and the Company consent to the use of the
Prospectus or any amendment or supplement thereto by
any such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any
other offering of securities pursuant to any
Registration Statement, the Trust and the Company
shall, if required by applicable law, register or
qualify or cooperate with the Holders of securities
included therein and their respective counsel in
connection with the registration or qualification of
such securities for offer and sale under the securities
or blue sky laws of such jurisdictions as any such
Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the
securities covered by such Registration Statement;
provided, however, that neither the Trust nor the
Company will be required to qualify generally to do
business in any jurisdiction where it is not then so
qualified or to take any action which would subject it
to general service of process or to taxation in any
such jurisdiction where it is not then so subject.
(j) Unless the applicable securities shall be in
book-entry only form, the Trust and the Company shall
cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing
the securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such
denominations and registered in such names as Holders
may request prior to sales of securities pursuant to
such Registration Statement.
(k) Upon the occurrence of any event contemplated
by paragraphs c(1)(ii) or (c)(2)(iii) above, the Trust
and the Company shall promptly prepare a post-effective
amendment to any Registration Statement or an amendment
or supplement to the related Prospectus or file any
15
other required document so that, as thereafter
delivered to purchasers of the securities included
therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any
material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading.
(l) The Trust and the Company shall use their
best efforts to cause The Depository Trust Company
("DTC") on the first business day following the
effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove
(i) from any existing CUSIP number assigned to the
Pass-through Securities and/or Junior Subordinated Debt
Securities, as the case may be, any designation
indicating that such securities are "restricted
securities", which efforts shall include delivery to
DTC of a letter executed by the Trust and the Company
substantially in the form of Annex E hereto and
(ii) any other stop or restriction on DTC's system with
respect to such securities. In the event the Trust and
the Company are unable to cause DTC to take the actions
described in the immediately preceding sentence, the
Company shall take such actions as Deutsche Xxxxxx
Xxxxxxxx Inc. may reasonably request to provide, as
soon as practicable, a CUSIP number for the Pass-
through Securities and/or Junior Subordinated Debt
Securities, as the case may be, registered under such
Registration Statement and to cause such CUSIP number
to be assigned to such securities (or to the maximum
aggregate principal amount of such securities to which
such number may be assigned). Upon compliance with the
foregoing requirements of this Section 4(l), the Trust
and the Company shall provide the Trustee with printed
certificates for such securities, in a form eligible
for deposit with DTC.
(m) The Trust and the Company shall use their
best efforts to comply with all applicable rules and
regulations of the Commission and shall make generally
available to its security holders as soon as
practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Trust and the Company shall cause the
Junior Subordinated Indenture, the Declaration and the
16
Guarantee to be qualified under the Trust Indenture Act
in a timely manner.
(o) The Trust and the Company may require each
Holder of securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Trust and the
Company such information regarding such Holder and the
distribution of such securities by such Holder as the
Trust and the Company may from time to time reasonably
require for inclusion in such Registration Statement.
(p) The Trust and the Company shall, if
requested, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf
Registration Statement, such information as the
Managing Underwriters and Majority Holders reasonably
agree should be included therein and shall make all
required filings of such Prospectus supplement or post-
effective amendment as soon as notified of the matters
to be incorporated in such Prospectus supplement or
post-effective amendment.
(q) In the case of any Shelf Registration
Statement, the Trust and the Company shall enter into
such agreements (including underwriting agreements) and
take all other appropriate actions in order to expedite
or facilitate the registration or the disposition of
the Securities or the Exchange Securities, as the case
may be, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain
indemnification provisions and procedures no less
favorable than those set forth in Section 6 (or such
other provisions and procedures acceptable to the
Majority Holders and the Managing Underwriters, if any)
with respect to all parties to be indemnified pursuant
to Section 6.
(r) In the case of any Shelf Registration
Statement, the Trust and the Company shall (i) make
reasonably available for inspection by the Holders of
securities to be registered thereunder, any underwriter
participating in any distribution pursuant to such
Registration Statement, and any attorney, accountant or
other agent retained by such Holders or any such
underwriter all relevant financial and other records,
pertinent corporate documents and properties of the
Trust or the Company and its subsidiaries as shall
reasonably be required in connection with the discharge
17
of their due diligence obligations; (ii) cause the
Company's officers, directors and employees and any
relevant Trustee to supply at the Company's expense all
relevant information reasonably requested by such
Holders or any such underwriter, attorney, accountant
or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations; provided, however, that, in the case of
clause (i) and (ii) above, any information that is
designated in writing by the Trust or the Company, in
good faith, as confidential at the time of delivery of
such information shall be kept confidential by such
Holders and any such underwriter, attorney, accountant
or agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such
information becomes available to the public generally
or through a third party without an accompanying
obligation of confidentiality; and provided further,
however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Holders
and the other parties entitled thereto by one counsel
designated by and on behalf of such Holders and other
parties; (iii) make such representations and warranties
to the Holders of securities registered thereunder and
the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in
primary underwritten offerings and covering such
matters as are customarily covered in representations
and warranties requested in primary underwritten
offerings; (iv) obtain opinions of counsel to the Trust
and the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters,
if any) addressed to each selling Holder and the
underwriters, if any, covering such matters and with
such exceptions as are customarily covered or taken in
opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such
Holders and underwriters (it being agreed that the
matters to be covered by such counsel shall include,
without limitation, as of the date of the opinions and
as of the effective date of the Registration Statement
or most recent post-effective amendment thereto, as the
case may be, a statement by such counsel regarding the
absence from such Registration Statement and the
Prospectus included therein, as then amended or
supplemented, including the documents incorporated by
reference therein, of an untrue statement of a material
18
fact or the omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading); (v) obtain "cold
comfort" letters and updates thereof from the
independent certified public accountants of the Company
(and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or
of any business acquired by the Company for which
financial statements and financial data are, or are
required to be, included in the Registration
Statement), addressed to each selling Holder of
securities registered thereunder and the underwriters,
if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to
evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the Trust
and the Company. The foregoing actions set forth in
clauses (iii), (iv), (v) and (vi) of this Section 4(r)
shall be performed at (A) the effectiveness of such
Registration Statement and each post-effective
amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent
required thereunder.
(s) In the case of any Exchange Offer
Registration Statement, if requested by the Purchaser,
the Trust and the Company shall (i) make reasonably
available for inspection by the Purchaser, and any
attorney, accountant or other agent retained by
Purchaser, all relevant financial and other records,
pertinent corporate documents and properties of the
Company and its subsidiaries or the Trust as shall
reasonably be required in connection with the discharge
of their due diligence obligations; (ii) cause the
Company's officers, directors and employees and any
relevant Trustee to supply at the Company's expense all
relevant information reasonably requested by the
Purchaser or any such attorney, accountant or agent in
connection with any such Registration Statement as is
customary for similar due diligence examinations;
provided, however, that, in the case of clause (i)
and (ii) above, any information that is designated in
writing by the Company or the Trust, in good faith, as
19
confidential at the time of delivery of such
information shall be kept confidential by the Purchaser
and any such attorney, accountant or agent, unless such
disclosure is made in connection with a court
proceeding or required by law, or such information
becomes available to the public generally or through a
third party without an accompanying obligation of
confidentiality; (iii) make such representations and
warranties to the Purchaser, in form, substance and
scope as are customarily made by issuers to
underwriters in primary underwritten offerings and
covering such matters as are customarily covered in
representations and warranties requested in primary
underwritten offerings; (iv) obtain opinions of counsel
to the Trust and the Company and updates thereof (which
counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Purchaser
and its counsel) addressed to the Purchaser, covering such
matters as are customarily covered in opinions
requested in underwritten offerings and such other
matters as may be reasonably requested by the Purchaser
or its counsel (it being agreed that the matters to be
covered by such counsel shall include, without
limitation, as of the date of the opinions and as of
the effective date of the Registration Statement or
most recent post-effective amendment thereto, as the
case may be, a statement by such counsel regarding the
absence from such Registration Statement and the
Prospectus included therein, as then amended or
supplemented, including the documents incorporated by
reference therein, of an untrue statement of a material
fact or the omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading); (v) obtain "cold
comfort" letters and updates thereof from the
independent certified public accountants of the Company
(and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or
of any business acquired by the Company for which
financial statements and financial data are, or are
required to be, included in the Registration
Statement), addressed to the Purchaser, in customary
form and covering matters of the type customarily
covered in "cold comfort" letters in connection with
primary underwritten offerings, or if requested by the
Purchaser or its counsel in lieu of a "cold comfort"
letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering
20
matters requested by the Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Purchaser or its counsel,
including those to evidence compliance with Section
4(k) and with conditions customarily contained in
underwriting agreements. The foregoing actions set
forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(s) shall be performed, if requested by the
Purchaser, at the closing of the Registered Exchange
Offer and the effective date of any post-effective
amendment to the Exchange Offer Registration Statement.
5. Registration Expenses. The Trust and the
Company shall bear all expenses incurred in connection with
the performance of their obligations under Sections 2, 3 and
4 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders of securities
registered thereunder for the reasonable fees and
disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for such Holders in
connection therewith, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Purchaser for the
reasonable fees and disbursements of counsel acting in
connection therewith.
6. Indemnification and Contribution. (a) In
connection with any Registration Statement, the Company
agrees to indemnify and hold harmless each Holder of
securities covered thereby (including the Purchaser and,
with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors,
officers, employees and agents of each such Holder and each
person who controls any such Holder within the meaning of
either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed
or in any amendment thereof, or in any preliminary
Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse
21
each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the
Company will not be liable in any case to the extent that
any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Trust and the Company by or on behalf of
any such Holder specifically for inclusion therein and
(ii) such indemnity with respect to any untrue statement or
omission in any preliminary Prospectus relating to a Shelf
Registration Statement shall not inure to the benefit of any
Holder from whom the person asserting any such loss, claim,
damage or liability purchased the securities that are the
subject thereof, to the extent that any such loss, claim,
damage or liability of such Holder occurs under the
circumstances where it shall have been determined by a court
of competent jurisdiction by final and nonappealable
judgment that (w) the Trust and the Company had previously
furnished copies of the final Prospectus to such Holder,
(x) delivery of the final Prospectus was required by the Act
to be made to such person, (y) the untrue statement or
omission of a material fact contained in the preliminary
Prospectus was completely corrected in the final Prospectus
and (z) there was not sent or given to such person, at or
prior to the written confirmation of the sale of such
securities to such person, a copy of the final Prospectus.
This indemnity agreement will be in addition to any
liability which the Trust and the Company may otherwise
have.
The Company also agrees to indemnify or contribute
to Losses (as defined below) of, as provided in Section
6(d), any underwriters of securities registered under a
Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on
substantially the same basis as that of the indemnification
of the Purchaser and the selling Holders provided in this
Section 6(a) and shall, if requested by any underwriter,
enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a
Registration Statement (including the Purchaser and, with
respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer) severally
22
agrees to indemnify and hold harmless (i) the Trust and the
Company, (ii) each of the Company's directors, (iii) each of
the Company's officers or any Trustee who signs such
Registration Statement and (iv) each person who controls the
Company or the Trust within the meaning of either the Act or
the Exchange Act to the same extent as the foregoing
indemnity from the Company to each such Holder, but only
with reference to written information relating to such
Holder furnished to the Trust or the Company by or on behalf
of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
such Holder may otherwise have.
(c) Promptly after receipt by an indemnified
party under this Section 6 of notice of the commencement of
any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in
writing of the commencement thereof; but the failure so to
notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above or paragraph (d)
below unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other
than obligations provided under this Section 6. The
indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for
which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the
indemnified party shall have the right to employ separate
counsel (including local counsel) (it being understood that
the indemnifying party shall not be liable for the fees,
costs and expenses of more than one separate counsel (and,
to the extent necessary, one local counsel in each
jurisdiction)), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel
(and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would
23
present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such
action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are
different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 6 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and
several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with
investigating or defending the same) (collectively "Losses")
to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from
the Initial Placement and the Registration Statement which
resulted in such Losses; provided, however, that in no case
shall the Purchaser be responsible, in the aggregate, for
any amount in excess of the purchase discount, commission or
compensation applicable to such Security, or in the case of
an Exchange Security, applicable to the Security which was
exchangeable into such Exchange Security, as set forth on
the cover page of the Final Memorandum, nor shall any
underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the
24
securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If
the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements
or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received
by the Trust and the Company shall be deemed to be equal to
the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the
Final Memorandum. Benefits received by the Purchaser shall
be deemed to be equal to the total purchase discounts,
commissions or compensation as set forth on the cover page
of the Final Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the excess, if any,
of the value to such Holder of receiving Securities or
Exchange Securities, as applicable, registered under the Act
over the value to such Holder of holding Securities not
registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the
cover page of the Prospectus forming a part of the
Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference to whether
any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any
other method of allocation which does not take account of
the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this
Section 6, each person who controls a Holder within the
meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and
each person who controls the Company or the Trust within the
meaning of either the Act or the Exchange Act, each officer
of the Company and each trustee of the Trust who shall have
signed the Registration Statement and each director of the
25
Company and each trustee of the Trust shall have the same
rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph
(d).
(e) The provisions of this Section 6 will remain
in full force and effect, regardless of any investigation
made by or on behalf of any Holder, the Company or the Trust
or any of the officers, directors, trustees or controlling
persons referred to in Section 6 hereof, and will survive
the sale by a Holder of securities covered by a Registration
Statement.
7. Additional Interest and Additional
Distributions Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") shall become payable in
respect of the Junior Subordinated Debt Securities
(including in respect of amounts accruing during any
Extension Period (as defined in the Junior Subordinated
Indenture)), and corresponding additional distributions (the
"Additional Distributions") shall become payable on the
Capital Securities as follows if any of the following events
occur (each such event in clauses (i) through (iv) below, a
"Registration Default"):
(i) if the Exchange Offer Registration Statement
is not filed with the Commission on or prior to the 60th day
following the Closing Date;
(ii) if the Exchange Offer Registration Statement
is not declared effective on or prior to the 150th day
following the Closing Date;
(iii) if the Registered Exchange Offer is not
consummated or the Shelf Registration Statement is not
declared effective on or prior to the 180th day (or, if the
Company shall determine in good faith that a Tax Contingency
exists on such 180th day, the 240th day (a "Tax Contingency
Extension")) following the Closing Date; or
(iv) if, after the 180th day (or in the case of a
Tax Contingency Extension, the 240th day) following the
Closing Date, and after the Shelf Registration Statement is
declared effective, (A) such Shelf Registration Statement
ceases to be effective prior to the end of the Shelf
Registration Period (except as permitted in paragraph (b) of
this Section 7); or (B) such Shelf Registration Statement or
the related Prospectus ceases to be useable in connection
26
with resales of Securities or Exchange Securities, as the
case may be, covered by such Shelf Registration Statement
prior to the end of the Shelf Registration Period (except as
permitted in paragraph (b) of this Section 7) because either
(1) any event occurs as a result of which the related
Prospectus forming part of such Shelf Registration Statement
would include any untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein in the light of the circumstances under
which they were made not misleading or (2) it shall be
necessary to amend such Shelf Registration Statement, or
supplement the related Prospectus, to comply with the
Securities Act or the Exchange Act or the respective rules
thereunder.
Additional Interest and Additional Distributions
shall accrue on the Junior Subordinated Debt Securities and
the Capital Securities, respectively, over and above the
interest rate or distribution rate, as the case may be, set
forth in the title to the Junior Subordinated Debt
Securities and the Capital Securities following the
occurrence of each Registration Default set forth in
clauses (i), (ii), (iii) and (iv) above from and including
the next day following each such Registration Default, in
each case at a rate equal to 0.25% per annum; provided,
however, that the aggregate amount of Additional Interest
and Additional Distributions, respectively, payable pursuant
this Section 7(a) will in no event exceed 0.75% per annum.
The Additional Interest and the Additional Distributions
attributable to each Registration Default shall cease to
accrue from the date such Registration Default is cured.
(b) A Registration Default referred to in
Section 7(a)(iv) shall be deemed not to have occurred and be
continuing in relation to the Shelf Registration Statement
or the related Prospectus if (i) such Registration Default
has occurred solely as a result of (x) the filing of a post-
effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with
respect to the Company where such post-effective amendment
is not yet effective and needs to be declared effective to
permit Holders to use the related Prospectus or (y) the
occurrence of other material events or developments with
respect to the Trust or the Company that would need to be
described in such Registration Statement or the related
Prospectus and (ii) in the case of clause (y), the Trust and
the Company are proceeding promptly and in good faith to
amend or supplement such Registration Statement and related
27
Prospectus to describe such events; provided, however, that
in any case, if such Registration Default occurs for a
continuous period in excess of 45 days, Additional Interest
and Additional Distributions shall be payable in accordance
with the above paragraph from the first day of such 45-day
period until the date on which such Registration Default is
cured.
(c) Any amounts of Additional Interest and
Additional Distributions due pursuant to the foregoing
paragraphs will be payable in cash on June 4 and December 4
each year to the holders of record on the preceding May 20
and November 20, respectively.
8. Miscellaneous.
(a) No Inconsistent Agreements. Each of the
Trust and the Company has not, as of the date hereof,
entered into, nor shall it, on or after the date
hereof, enter into, any agreement with respect to the
Securities that is inconsistent with the rights granted
to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of
this Agreement, including the provisions of this
sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the
Trust and the Company have obtained the written consent
of the Holders of at least a majority of the then
outstanding aggregate liquidation amount or principal
amount, as the case may be, of Securities (or, after
the consummation of any Exchange Offer in accordance
with Section 2 hereof, of Exchange Securities);
provided, however, that, with respect to any matter
that affects the rights of the Purchaser hereunder, the
Trust and the Company shall obtain the written consent
of the Purchaser. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a
Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be
given by the Majority Holders, determined on the basis
of securities being sold rather than registered under
such Registration Statement.
28
(c) Notices. All notices and other
communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the most current
address given by such holder to the Company in
accordance with the provisions of this
Section 8(c), which address initially is, with
respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture,
with a copy in like manner to Deutsche Xxxxxx
Xxxxxxxx Inc.;
(2) if to you, initially at the address set
forth in the Purchase Agreement; and
(3) if to the Company or the Trust, initially
at the address set forth in the Purchase Agreement.
All such notices and communications shall be
deemed to have been duly given when received.
The Purchaser, the Trust or the Company by notice
to the other may designate additional or different addresses
for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors
and assigns of each of the parties, including, without the
need for an express assignment or any consent by the Company
or the Trust thereto, subsequent Holders of Securities
and/or Exchange Securities. The Trust and the Company
hereby agree to extend the benefits of this Agreement to any
Holder of Securities and/or Exchange Securities and any such
Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
29
(f) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be
governed by and construed in accordance with the internal
laws of the State of New York applicable to agreements made
and to be performed in said State.
(h) Severability. In the event that any one of
more of the provisions contained herein, or the application
thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall
not be in any way impaired or affected thereby, it being
intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted
by law.
(i) Securities Held by the Trust or the Company,
etc. Whenever the consent or approval of Holders of a
specified percentage of liquidation amount or principal
amount, as the case may be, of Securities or Exchange
Securities is required hereunder, Securities or Exchange
Securities, as applicable, held by the Trust or the Company
or their respective Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such
subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Securities or Exchange
Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such
required percentage.
Please confirm that the foregoing correctly sets
forth the agreement among the Trust, the Company and you.
Very truly yours,
REPUBLIC NEW YORK CAPITAL II,
by: /s/ X. Xxxxx
------------------------
Name: Xxxxxxx Xxxxx
Title: Administrative Trustee
REPUBLIC NEW YORK CORPORATION,
by: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President,
Treasurer & Chief
Financial Officer
Accepted in New York, New York
December 4, 1996
DEUTSCHE XXXXXX XXXXXXXX INC.,
by: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
by: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
ANNEX A
Annex A
Each broker-dealer that receives Exchange
Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended
or supplemented from time to time, may be used by a broker-
dealer in connection with resales of Exchange Securities
received in exchange for Securities acquired by such broker-
dealer as a result of market-making activities or other
trading activities. The Trust and the Company have agreed
that, ending on the close of business on the 180th day
following the Expiration Date (as defined herein), it will
make this Prospectus available to any broker-dealer for use
in connection with any such resale. See "Plan of
Distribution".
ANNEX B
Annex B
Each broker-dealer that receives Exchange
Securities for its own account in exchange for Securities,
where such Securities were acquired by such broker-dealer as
a result of market-making activities or other trading
activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange
Securities. See "Plan of Distribution".
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange
Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or
other trading activities. The Trust and the Company have
agreed that, starting on the Expiration Date and ending on
the close of business on the 180th day following the
Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in
connection with any such resale. In addition, until
, 199 , all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Trust and the Company will not receive any
proceeds from any sale of Exchange Securities by broker-
dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-
the-counter market, in negotiated transactions, through the
writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form
of commissions or concessions from any such broker-dealer
and/or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act
and any profit of any such resale of Exchange Securities and
any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities
Act.
2
For a period of 180 days after the Expiration
Date, the Trust and the Company will promptly send
additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The
Trust and the Company have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of
one counsel for the holders of the Securities) other than
commissions or concessions of any brokers or dealers and
will indemnify the holders of the Securities (including any
broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
[If applicable, add information required by
Regulation S-K Items 507 and/or 508.]
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND
10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:___________________________________________
Address: _______________________________________
_______________________________________
Rider B
If the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does
not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will
receive Exchange Securities for its own account in exchange
for Securities, it represents that the Securities to be
exchanged for Exchange Securities were acquired by it as
a result of market-making activities or other trading
activities and acknowledges that it will deliver a
prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities
Act.
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
Republic New York Capital II
Republic New York Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: 7.53% Capital Securities (the "Securities")
of Republic New York Capital II, fully and
unconditionally guaranteed by Republic New
York Corporation
Ladies and Gentlemen:
Please be advised that the Securities and Exchange
Commission has declared effective a Registration Statement
on Form S-3 under the Securities Act of 1933 with regard to
all of the Securities referenced above. Accordingly, there
is no longer any restriction as to whom such Securities may
be sold and any restrictions on the CUSIP designation are no
longer appropriate and may be removed. We understand that
upon receipt of this letter, DTC will remove any stop or
restriction on its system with respect to this issue.
As always, please do not hesitate to call if we
can be of further assistance.
REPUBLIC NEW YORK CAPITAL II,
by:_________________________
Authorized Officer
REPUBLIC NEW YORK CORPORATION,
by:__________________________
Authorized Officer
