[NYCORP2:263804.5:4655+11/26/96 9:18pm]
REPUBLIC NEW YORK CAPITAL I
$150,000,000
7 3/4% Capital Trust Pass-through SecuritiesSM
(TRUPSSM)
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
REPUBLIC NEW YORK CORPORATION
REGISTRATION AGREEMENT
New York, New York
November 27, 1996
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Republic New York Capital I, 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
Salomon Brothers Inc (the "Purchaser"), upon the terms set forth in a
purchase agreement of even date herewith (the "Purchase Agreement"),
150,000 of the Trust's 7 3/4% Capital Trust Pass-through 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 3/4% Common
Securities, liquidation amount $1,000 per Common Security (the "Common
Securities"), are to be invested in the 7 3/4% Junior Subordinated Debt
Securities of the Company having an aggregate principal amount equal to the
aggregate liquidation amount of the Capital 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,
1
the Trust and the 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.
"Closing Date" has the meaning given such term in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Declaration" means the Amended and Restated Declaration of Trust
relating to the Capital Securities and the Exchange Capital Securities
dated as of November 27, 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.
"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.
2
"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 Debt Securities
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 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.
3
"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 November 27, 1996 between the Company and the Guarantee
Trustee.
"Guarantee Trustee", "Indenture Trustee" and "Property Trustee" each
mean Bankers Trust Company, a New York banking corporation.
"Holder" has the meaning set forth in the preamble hereto.
"Junior Subordinated Indenture" means the Junior Subordinated
Indenture relating to the Junior Subordinated Debt Securities and the
Exchange Junior Subordinated Debt Securities dated as of November 27, 1996
between the Company and the Indenture Trustee.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Majority Holders" means the Holders of a majority of the aggregate
liquidation amount or of the aggregate principal amount, as applicable, of
securities registered under a Registration Statement.
4
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering.
"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.
"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.
"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.
5
"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.
"Trustee" means the Guarantee Trustee, the Indenture Trustee or the
Property Trustee, as applicable.
"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 promptly 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 restrictions under the Act
and without material restrictions under the securities laws of a
6
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 in good faith that (i) there is a reasonable
likelihood 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 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
7
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, 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, 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
8
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 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
9
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 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 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 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
10
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 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
11
facsimile number and address for notices, and, if requested by you or
any such Holder or Exchanging Dealer, 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 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
12
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 of securities 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 (including those incorporated by
reference).
(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 Holders
reasonably request 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
13
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 of
Securities to facilitate the timely preparation and delivery of
certificates representing 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 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 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
Salomon Brothers Inc may reasonably request to provide, as soon as
practicable, a CUSIP number for the Pass-through Securities or Junior
Subordinated Debt Securities, as the case may be, registered under
such Registration
14
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 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
15
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 the
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 of their due diligence obligations; (ii)
cause the Company's officers, directors and employees and any relevant
trustee to supply all relevant information reasonably requested by the
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 the 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
16
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 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.
17
(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 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 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; (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
18
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 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 for the reasonable fees
and disbursements of one firm or counsel designated by the Majority Holders
to act as counsel for the 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
19
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 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.
20
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
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
21
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 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
22
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
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
23
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 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;
24
(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 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.
25
(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
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 May 15
and November 15 each year to the holders of record on the preceding May 1
and November 1, 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
26
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.
(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
Salomon Brothers 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
27
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.
(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.
28
Please confirm that the foregoing correctly sets forth the agreement
among the Trust, the Company and you.
Very truly yours,
REPUBLIC NEW YORK CAPITAL I,
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 and Chief
Financial Officer - Financial
Planning and Treasury
Accepted in New York, New York
November , 1996
SALOMON BROTHERS INC,
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Attorney-in-Fact
29
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.
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 I
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 3/4% Capital Trust Pass-through SecuritiesSM (TRUPSSM) (the
"Securities") of Republic New York Capital I, 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. I 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 I,
by:
Authorized Officer
REPUBLIC NEW YORK CORPORATION,
by:
Authorized Officer
