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EXHIBIT 1.2
[FORM OF UNDERWRITING AGREEMENT]
_____________ PREFERRED SECURITIES
[ REPUBLIC NEW YORK CAPITAL __ ]
(A DELAWARE BUSINESS TRUST)
____ TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT [$____ ] PER TRUST PREFERRED SECURITY) GUARANTEED
TO A LIMITED EXTENT BY REPUBLIC NEW YORK CORPORATION
UNDERWRITING AGREEMENT
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____________, 199__
[Underwriter]
Dear Sirs:
Each of [Republic New York Capital ___ ] (the "Trust"), a statutory
business trust formed under the Business Trust Act (the "Delaware Act") of the
State of Delaware and Republic New York Corporation, a bank holding company
organized under the laws of the State of Maryland (the "Company"), confirms its
agreement with ____________ and each of the other Underwriters named in Schedule
I hereto, collectively, the "Underwriters," which term shall include any
underwriter substituted as hereinafter provided in Section 9 hereof), for whom
____________, ____________ and ____________ are acting as Representatives (in
such capacity, the "Representatives"), with respect to the sale by the Trust and
the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of ___ Trust Preferred Securities (liquidation
amount [$____] per trust preferred security) of the Trust (the "Trust Preferred
Securities") set forth in Schedule I (the "Securities"). The Trust Preferred
Securities will be guaranteed by the Company on a limited basis to the extent
the Trust has funds available therefor pursuant to a Guarantee Agreement to be
dated as of the Closing Date (the "Guarantee").
The entire proceeds from the sale of the Securities will be combined with
the entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities") and will be used by the Trust to purchase
the ___% Junior Subordinated Debentures due ____ (the "Junior Subordinated Debt
Securities") of the Company. The Trust Preferred Securities and the Common
Securities will be issued pursuant to the amended and restated declaration of
trust of the Trust, to be dated as of the Closing Date (the "Declaration"),
among the Company, as Depositor, the trustees named therein (the "Trustees") and
the holders from time to time of the Trust Preferred Securities and the Common
Securities. The Junior Subordinated Debt Securities will be issued pursuant to
an indenture, dated as of December 15, 1997 (the "Base Indenture"), between the
Company and Bankers Trust Company, as trustee (the "Debt Trustee"), and a
supplement to the Base Indenture, to be dated as of the Closing Date (the
"Supplemental Indenture," and together with the Base Indenture and any other
amendments or supplements thereto, the "Indenture"), between the Company and the
Debt Trustee.
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Prior to the purchase and public offering of the Securities by the several
Underwriters, the Trust, the Company and the Representatives, acting on behalf
of the several Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Trust and the Company and the Representatives and shall specify such
applicable information as is indicated in Exhibit A hereto. The offering of the
Securities will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the Pricing
Agreement, this Agreement shall be deemed to incorporate the Pricing Agreement.
The Trust and the Company understand that the Underwriters propose to make
a public offering of the Securities as soon as the Representatives deem
advisable after the Registration Statement becomes effective and the Pricing
Agreement has been executed and delivered.
SECTION 1. REGISTRATION STATEMENT AND PROSPECTUS. The Trust and the
Company have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-________) and a
related preliminary prospectus relating to the Securities and the Junior
Subordinated Debt Securities under the Securities Act of 1933, as amended (the
"1933 Act"), have filed such amendments thereto, if any, and such amended
preliminary prospectus or prospectuses and preliminary prospectus supplement or
supplements as may have been required to the date hereof, and will promptly file
with the Commission a prospectus supplement specifically relating to the
Securities pursuant to Rule 424 under the 1933 Act, if necessary. The
information, if any, included in such prospectus and prospectus supplement that
was omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information". Each prospectus and prospectus supplement used before such
registration statement became effective, and any prospectus and prospectus
supplement that omitted the Rule 430A Information that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is
herein called a "preliminary prospectus." Such registration statement, including
the exhibits thereto, schedules thereto, if any, and the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it became effective and including the Rule 430A Information is herein
called the "Registration Statement." The final prospectus, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriters for use in
connection with the offering of the Securities, is herein called the
"Prospectus." For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934
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(the "1934 Act") which is incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectus, as the case may be.
SECTION 2. AGREEMENTS TO SELL AND PURCHASE.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at the price per
Trust Preferred Security set forth in the Pricing Agreement, the number of
Securities set forth in Schedule I opposite the name of such Underwriter (except
as otherwise provided in the Pricing Agreement), plus any additional number of
Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) As compensation to the Underwriters for their commitment hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust to purchase the Junior Subordinated Debt Securities of the
Company, the Company hereby agrees to pay at the Closing Date and the Date of
Delivery, if any, for the account of the several Underwriters, an amount per
Trust Preferred Security as set forth in the Pricing Agreement.
SECTION 3. DELIVERY AND PAYMENT.
Payment of the purchase price for, and delivery of certificates for, the
Securities to be purchased by the Underwriter shall be made at the offices of
the Company, or at the offices of the Depository Trust Company ("DTC") if the
Securities are to be issued in book-entry form, or at such other place as shall
be agreed upon by the Representatives, the Trust and the Company, at 11:00 A.M.
on the third business day following the date of the Pricing Agreement, or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives, the Trust and the Company (such time and date of
payment and delivery being herein called the "Closing Date"). Unless otherwise
specified in Schedule I, payment shall be made in immediately available funds by
fed wire payable to the order of the Trust against delivery to the
Representatives for the account of the several Underwriters of the Trust
Preferred Securities in book-entry form through the facilities of The Depository
Trust Company. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase. ____________, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose payment of the
purchase price has not been received by the Closing Date, but such payment shall
not relieve such Underwriter from its obligations hereunder.
At the Closing Date and the Date of Delivery, if any, the Company will
pay, or cause to be paid, the commission payable at such time to the
Underwriters under Section 2 hereof in immediately available funds by fed wire
payable to ________________.
SECTION 4. COVENANTS OF THE TRUST AND THE COMPANY. Each of the Trust and
the Company, jointly and severally, covenants with each Underwriter as follows:
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(a) The Trust and the Company, subject to Section 4(c), will comply with
the requirements of Rule 430A, if applicable, and will notify the Underwriters
immediately, and confirm the notice in writing, (1) of the effectiveness of any
post-effective amendment to the Registration Statement and of the filing of any
amended Prospectus pursuant to Rule 430A, if applicable, or Rule 424(b), (2) of
any comments of the Commission regarding the Registration Statement or the
Prospectus (or any of the documents incorporated by reference therein) or of any
request by the Commission for amendments or supplements to the Registration
Statement or the Prospectus or for additional information, (3) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement, any order preventing or suspending the use of any
preliminary prospectus or the initiation or threatening of any proceedings for
that purpose, (4) of the receipt by the Trust or the Company of any notification
with respect to the suspension of the qualification of the Securities for offer
or sale in any jurisdiction or the initiation or threatening of any proceedings
for such purpose and (5) of the happening of any event during the period
mentioned in paragraph (d) below which makes any statement of a material fact
made in the Registration Statement or the Prospectus (as theretofore amended or
supplemented) untrue or which requires the making of any changes in the
Registration Statement or the Prospectus (as theretofore amended or
supplemented) in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading.
The Trust and the Company will use their reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of the Registration Statement
or any order preventing or suspending the use of any preliminary prospectus or
suspending the qualification of the Securities for offer or sale in any
jurisdiction, and if any such order is issued, the Trust and the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(b) To furnish to each of the Underwriters, without charge, one copy of
the Registration Statement as filed with the Commission and any post-effective
amendment thereto, including all financial statements and schedules, exhibits
and documents incorporated therein by reference (including exhibits incorporated
therein by reference to the extent not previously furnished to the Underwriters)
and to deliver to the Underwriters the number of conformed copies of the
Registration Statement and any post-effective amendment thereto, excluding
exhibits, as the Underwriters or their counsel may reasonably request.
(c) To give the Representatives advance notice of their intention to file
any amendment or supplement to the Registration Statement or the Prospectus with
respect to the Securities, and not to file any such amendment or supplement to
which the Representatives shall reasonably object in writing.
(d) During the period of time that the Prospectus is required by law to be
delivered, to deliver to each Underwriter, without charge, as many copies of the
Prospectus or any amendment or supplement thereto as such Underwriter may
reasonably request. Each of the Trust and the Company consents to the use of the
Prospectus or any amendment or supplement thereto by the several Underwriters
and by all dealers to whom the Securities may be sold, both in connection with
the offering or sale of the Securities and for such period of time thereafter as
the Prospectus is required by law to be delivered in connection therewith. If
during such period of time any event shall occur which in the judgment of the
Trust or the Company should be set forth (or incorporated by reference) in the
Prospectus in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to supplement or amend the Prospectus to comply with law,
the Trust and the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment
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thereto, and shall in any event forthwith file all reports and any definitive
proxy statement or information statement required to be filed by the Trust or
the Company with the Commission pursuant to Section 13 or 14 of the 1934 Act
subsequent to the date of the Prospectus, and will deliver to each Underwriter,
without charge, such number of copies thereof as such Underwriter may reasonably
request. If during such period of time any event shall occur which in the
judgment of the Representatives should be so set forth in the Prospectus, or
which in the judgment of the Representatives makes it necessary to so supplement
or amend the Prospectus, the Trust and the Company will consult with the
Representatives concerning the necessity of filing with the Commission a
supplement or amendment to the Prospectus or a report pursuant to Section 13 or
14 of the 1934 Act.
(e) Prior to any public offering of any Securities by the Underwriters, to
cooperate with the Representatives and counsel retained by the Representatives
in connection with the registration or qualification of the Securities (and any
securities issuable upon conversion or exercise of the Securities) for offer and
sale under the securities or Blue Sky laws of, and the determination of the
eligibility of Securities for investment under the laws of, such jurisdictions
as the Underwriter may request; provided, that in no event shall either the
Trust or the Company be obligated to qualify to do business as a foreign limited
partnership or corporation, as the case may be, or as a securities dealer in any
jurisdiction where it is not now so qualified, to conform its capitalization or
the composition of its assets to the securities or Blue Sky laws of any
jurisdiction or to take any action which would subject it to taxation or general
service of process in any jurisdiction where it is not now so subject. The
Company will pay all reasonable fees and expenses (including reasonable counsel
fees and expenses) relating to registration or qualification of Securities (and
any securities issuable upon conversion or exercise of any Securities) under
such securities or Blue Sky laws and in connection with the determination of the
eligibility of Securities for investment under the laws of such jurisdictions as
the Representatives may designate. In each jurisdiction in which the Securities
have been so qualified, the Trust and the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be required in connection with the
distribution of the Securities.
(f) To make generally available to their security holders and to each
Underwriter the consolidated earnings statements (which need not be audited)
that satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder.
(g) If, at the time that the Registration Statement became effective, any
information was omitted therefrom in reliance upon Rule 430A of the 1933 Act
Regulations, then, immediately following the execution of the Pricing Agreement,
to prepare, and file or transmit for filing with the Commission in accordance
with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of each
amended Prospectus, or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including any amended Prospectus),
containing all information so omitted.
(h) The Company shall pay or cause to be paid the following: (1) all costs
and expenses incurred in connection with the preparation, printing and filing of
the Registration Statement, any preliminary prospectus, the Prospectus and any
legal investment memorandum and Blue Sky memorandum as contemplated by Section
4(e), (2) any listing fees incident to any listing of the Securities on a
national securities exchange, (3) any fees charged by securities rating agencies
for rating any of the Securities, (4) all costs and expenses incurred in
connection with the preparation, issuance and delivery of the Securities (other
than transfer taxes) and the execution and delivery of
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the Indenture, (5) all costs and expenses incurred in connection with furnishing
such copies of the Registration Statement, the Prospectus and any preliminary
prospectus, and all amendments and supplements thereto, as may be requested for
use in connection with the offering and sale of Securities by dealers to whom
Securities may be sold, (6) the fees and expenses incurred in connection with
the registration of the Securities under the 1934 Act and (7) the fees and
expenses of the transfer agent for the Trust Preferred Securities, if any.
(i) If this Agreement is terminated by the Representatives because any
condition to the obligations of the Underwriters set forth in Section 7 hereof
is not satisfied or because of any failure or refusal on the part of the Trust
or the Company to comply with the terms of this Agreement or the applicable
Pricing Agreement, or if for any reason either of the Trust or the Company shall
be unable to perform its obligations herein or therein, the Company will
reimburse the several Underwriters, for all out-of-pocket expenses (including
the fees and expenses of counsel retained by the Underwriters) reasonably
incurred by the Underwriters in connection herewith. Neither the Trust nor the
Company, however, will be liable to any of the Underwriters for damages on
account of loss of anticipated profits.
(j) If specified in Schedule I hereto, during a period beginning from the
date hereof to and including the Closing Date, neither the Trust will,
without prior written consent of the Representatives, directly or indirectly,
sell, offer to sell, contract to sell, grant any option for the sale of, or
otherwise dispose of, any Trust Preferred Securities, any security convertible
into or exchangeable into or exercisable for, Trust Preferred Securities or any
equity securities, substantially similar to the Trust Preferred Securities,
except for the Trust Preferred Securities offered hereby nor the Company will,
without the prior written consent of the Representatives, directly or
indirectly, sell, offer to sell, contract to sell, grant any option for the sale
of, or otherwise dispose of, any Junior Subordinated Debt Securities or any debt
securities substantially similar to the Junior Subordinated Debt Securities to
be sold to the Trust.
(k) To arrange for the listing of the Securities upon notice of issuance
on the New York Stock Exchange, Inc. or such other national securities exchange
as may be designated in Schedule I.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
(a) Each of the Trust and the Company, jointly and severally, represents
and warrants to each Underwriter as of the date hereof and as of the date of the
Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") as follows:
(1) The documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment was
filed) with the Commission, conformed in all material respects to the
requirements of the 1934 Act, and the rules and regulations of the
Commission promulgated thereunder, and any further documents so filed and
incorporated by reference will, when they are filed with the Commission,
conform in all material respects to the requirements of the 1934 Act and
the rules and regulations of the Commission promulgated thereunder; none
of such documents, when it was filed (or, if an amendment with respect to
any such document was filed, when such amendment was filed), contained an
untrue statement of a
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material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and no such
further document, when it is filed, will contain an untrue statement of a
material fact or will omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(2) The Trust and the Company jointly meet the registrant
requirements and the transaction requirements for use of Form S-3 under
the 1933 Act in connection with the registration of the Securities. The
Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act, and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Trust or the
Company, are contemplated by the Commission, and any request on the part
of the Commission for additional information has been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Date, the Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time of filing thereof with the
Commission, included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and warranties
in this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Trust or the Company in
writing by any Underwriter through the Representatives expressly for use
in the Registration Statement or Prospectus or to that part of the
Registration Statement which consists of the Statements of Eligibility and
Qualification on Form T-1 under the Trust Indenture Act of Bankers Trust
Company.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations, if
applicable, and each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(3) This Agreement has been, and as of the date thereof, the Pricing
Agreement will have been, duly authorized, executed and delivered by the
Company.
(4) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act; all filings required
under the laws of the State of Delaware with respect to the creation and
valid existence of the Trust as a business trust have been made; under the
Delaware Act and the Declaration, the Trust has the business
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trust power and authority to (x) own property and conduct its business,
all as described in the Prospectus, (y) enter into and perform its
obligations under this Agreement, and (z) issue and perform its
obligations under the Trust Preferred Securities and the Common Securities
and is not required to be authorized to do business in any other
jurisdiction; the Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus; the Trust does not
have any consolidated or unconsolidated subsidiaries; and the Trust is and
will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(5) The Declaration has been duly and validly authorized by the
Company and, when executed and delivered by the Company and the Trustees
at the Closing Date, and assuming due authorization, execution and
delivery thereof by the Property Trustee and the Delaware Trustee (as such
terms are defined in the Declaration), will be the valid and binding
obligation of the Company and the Trustees, enforceable against the
Company and the Trustees in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, fraudulent transfer, moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally from time to time
in effect or by general equitable principles, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether such enforceability is considered in equity
or at law; and, at the Closing Date, the Declaration will have been duly
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(6) Under the Delaware Act and the Declaration, the execution and
delivery by the Trust of this Agreement and the Pricing Agreement, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary business trust action on the part of the
Trust; and this Agreement has been, and as of the date thereof the Pricing
Agreement will have been, duly executed and delivered by the Trust under
the law of Delaware.
(7) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor in accordance with the Declaration, will be
validly issued and fully paid and nonassessable undivided beneficial
interests in the assets of the Trust; and under the Delaware Act and the
Declaration, the issuance of the Common Securities will not be subject to
preemptive rights.
(8) The Trust Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust in accordance with
the Declaration to the Underwriters and paid for in accordance with this
Agreement, will be validly issued, and fully paid and nonassessable
undivided beneficial interests in the assets of the Trust; the holders of
the Trust Preferred Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; under the Delaware Act
and the Declaration, the issuance of the Trust Preferred Securities will
not be subject to preemptive rights; and the Trust Preferred Securities
conform to the description thereof in the Prospectus.
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(9) At the Closing Date, all of the issued and outstanding Common
Securities of the Trust will be owned directly or indirectly by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(10) At the Closing Date, the Property Trustee will be the record
holder of Junior Subordinated Debt Securities and no security interest,
mortgage, pledge, lien, encumbrance, claim or equity will be noted thereon
or on the register.
(11) The Guarantee has been duly and validly authorized by the
Company and, when executed and delivered by the Company at the Closing
Date, will constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally from time to time in effect or
by general equitable principles, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing, regardless of
whether such enforceability is considered in equity or at law; at the
Closing Date, the Guarantee will have been duly qualified under the Trust
Indenture Act; and the Guarantee conforms to the description thereof
contained in the Prospectus.
(12) The Indenture has been duly and validly authorized by the
Company and, when executed and delivered by the Company at the Closing
Date and, assuming due authorization, execution and delivery by the Debt
Trustee, at such Closing Date will constitute a valid and legally binding
agreement of the Company enforceable in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, fraudulent transfer, moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally from time to time
in effect or by general equitable principles, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether such enforceability is considered in equity
or at law; and at the Closing Date, the Indenture will have been duly
qualified under the Trust Indenture Act.
(13) The Junior Subordinated Debt Securities have been duly and
validly authorized by the Company and, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid for
by the Trust in accordance with the Declaration, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, except as enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or
other laws relating to or affecting the enforcement of creditors' rights
generally from time to time in effect or by general equitable principles,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether such enforceability is
considered in equity or at law; and the Junior Subordinated Debt
Securities conform to the description thereof contained in the Prospectus.
(14) The issuance and sale of the Trust Preferred Securities by the
Trust and the performance by the Trust of its obligations under this
Agreement and the Pricing Agreement will not conflict with, result in a
breach of any of the terms or provisions of, or constitute a default
under, the Declaration or any indenture, mortgage, deed of trust or other
material agreement or instrument to which the Trust is now a party or by
which it is
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bound, or any order of any court or governmental agency or authority
entered in any proceeding to which the Trust was or is now a party or by
which it is bound.
(15) The issuance and sale of the Securities by the Trust and the
issuance of the Junior Subordinated Debt Securities by the Company and the
performance by each of the Company or the Trust, as the case may be, of
its respective obligations under the terms of this Agreement, the Pricing
Agreement, the Guarantee, the Indenture and the Declaration will not
conflict with, result in a breach of any of the terms or provisions of, or
constitute a default under, the Company's charter or by-laws, or any
indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company or Republic National Bank of New York (the
"Bank") is now a party or by which it is bound, or any order of any court
or governmental agency or authority entered in any proceeding to which the
Company or the Bank was or is now a party or by which it is bound. Other
than the Bank, there is no significant subsidiary of the Company, as that
term is defined in Rule 1-02(v) of Regulation S-X, and there are no other
subsidiaries of the Company which individually, or in the aggregate, own
or lease property or conduct business which is material to the properties
or business of the Company and its subsidiaries taken as a whole.
(16) No authorization, approval, consent or order of any Delaware
court or governmental authority or agency is required to be obtained by
the Trust solely in connection with the issuance and sale of the Common
Securities and the Trust Preferred Securities or the purchase by the Trust
of the Junior Subordinated Debt Securities.
(17) The accountants who certified the financial statements and
supporting schedules incorporated by reference in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(18) Except to the extent set forth in the Prospectus, neither the
Trust nor the Company has received any notice of, nor does it have any
actual knowledge of, any failure by it or, in the case of the Company, any
of its significant subsidiaries to be in substantial compliance with all
existing statutes and regulations applicable to it or, in the case of the
Company, such subsidiaries, which failure would materially and adversely
affect the conduct of the business of the Trust or of the Company and its
subsidiaries, considered as a whole.
(19) The statements set forth in the Prospectus under the caption
"Certain United States Federal Income Tax Consequences," insofar as they
purport to describe the provisions of the law referred to therein, are
accurate and complete in all material respects.
(20) The Trust will be classified as a "grantor trust" for United
States federal income tax purposes and not classified as an association
taxable as a corporation for United States federal income tax purposes
under federal income tax laws as currently in effect.
(21) Neither the Trust nor the Company is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and
neither the Trust nor the Company is subject to regulation under such Act.
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(b) Any certificate signed by any Administrative Trustee of the Trust or
officer of the Company and delivered to the Representatives or to counsel for
the Underwriters pursuant to the terms of this Agreement shall be deemed a
representation and warranty by the Trust or the Company, as the case may be, to
the Underwriters as to the matters covered thereby.
SECTION 6. INDEMNIFICATION. (a) Each of the Trust and the Company agrees,
jointly and severally to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either the 1933 Act or
the 1934 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 1933 Act,
the 1934 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 for the registration of the Securities as originally filed or in any
amendment thereof, or in the Prospectus, any preliminary 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) neither the Trust nor the Company will not be liable in any such 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/or the Company by or on behalf of any
Underwriter through the Representatives specifically for use in connection with
the preparation thereof, and (ii) such indemnity with respect to the Prospectus
or any preliminary prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as amended or supplemented) excluding documents incorporated therein
by reference at or prior to the confirmation of the sale of such Securities to
such person and the untrue statement or omission of a material fact contained in
the Prospectus or any preliminary prospectus was corrected in the Prospectus (or
the Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Trust or the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Trust, including its trustees, and the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who controls
the Company within the meaning of either the 1933 Act or the 1934 Act, to the
same extent as the foregoing indemnity from the Trust and the Company to each
Underwriter, but only with reference to written information furnished to the
Trust and/or the Company by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter 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 omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 6. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the
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commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to participate in the defense of such action on behalf
of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel), approved by the Representatives in the case of paragraph (a)
of this Section 6, representing the indemnified parties under such paragraph (a)
who are parties to such action, (ii) 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 commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall be only
in respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 6 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Trust or the Company on grounds of policy or
otherwise, the Trust, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
to which the Trust, the Company and one or more of the Underwriters may be
subject in such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount bears to
the sum of such discount and purchase price of the Securities specified in
Schedule I hereto and the Trust and the Company are responsible for the balance;
provided, however, that (i) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter hereunder and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) 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 an Underwriter within the meaning of the Act shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the 1933 Act or the 1934 Act,
each officer of the Company who shall have signed the Registration Statement,
each director of the Company, and each trustee of the Trust shall have the same
rights to contribution as the Trust and the Company, subject in each case to
clause (ii) of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
The indemnity and contribution agreements contained in this Section 6 and
the representations and warranties of the Trust and the Company contained in
this Agreement shall
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remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of any Underwriter, by or on behalf of any
person controlling such Underwriter or by or on behalf of the Trust or the
Company, (b) acceptance of any of the Securities and payment therefor or (c) any
termination of this Agreement.
SECTION 7. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER. The
obligations of the several Underwriters hereunder are subject to the following
conditions:
(a) The Registration Statement shall have become effective prior to the
date hereof; at the Closing Date no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission; and the
Representatives shall have received a certificate, dated the Closing Date and
signed by (i) one Administrative Trustee of the Trust and (ii) the Chairman of
the Board, the President, any Vice Chairman or any Executive Vice President of
the Company (each of whom may, as to threatened proceedings, rely upon the best
of his information and belief), to such effect and to the effect set forth in
clause (f) of this Section 7. If the Trust and the Company have elected to rely
upon Rule 430A of the 1933 Act Regulations, the price of the Securities and any
price-related information previously omitted from the effective Registration
Statement pursuant to such Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within
the prescribed time period, and prior to the Closing Date the Company shall have
provided evidence satisfactory to the Underwriter of such timely filing, or a
post-effective amendment providing such information shall have been promptly
filed and declared effective in accordance with the requirements of Rule 430A of
the 1933 Act Regulations.
(b) At the Closing Date the Representatives shall have received:
(1) The opinion, dated as of the Closing Date, and reasonably
satisfactory to counsel for the Underwriters, from Xxxxxxx X. Xxxxxxxxx,
Xx., Esq., Senior Vice President, Deputy General Counsel and Corporate
Secretary of the Company to the following effect and covering such
additional matters as the Representatives may reasonably request:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of Maryland
and is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended, and has the corporate power
and authority to own its properties and conduct its business as
described in the Registration Statement and the Prospectus; the Bank
is a duly organized and validly existing national banking
association under the laws of the United States, continues to hold a
valid certificate to do business as such and has full power and
authority to conduct its business as such as described in the
Registration Statement and Prospectus; and, except as set forth
in the Registration Statement or the Prospectus, each of the Company
and the Bank is in all material respects in compliance with all
laws, rules, regulations, directives and published interpretations
issued or administered by, all conditions imposed in writing by and
all agreements entered into with, any bank regulatory agency,
authority or body having jurisdiction over the Company of the Bank
or any of their respective assets, operations or businesses; each of
the Company and the Bank holds all material licenses, certificates
and permits from governmental authorities necessary for the conduct
of its business as described in
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the Registration Statement; and, other than the Bank, there is no
significant subsidiary of the Company, as that term is defined in
Rule 1-02(v) of Regulation S-X, and there are no other subsidiaries
of the Company which individually, or in the aggregate, own or lease
property or conduct business which is material to the properties or
business of the Company and its subsidiaries taken as a whole;
(ii) the Company has the corporate power and authority to
execute and deliver, and perform its obligations under, this
Agreement, the Pricing Agreement, the Guarantee, the Indenture and
the Declaration;
(iii) the Bank is duly authorized, and the Company is duly
qualified as a foreign corporation, to do business and is in good
standing in each jurisdiction in which such authorization or
qualification is required and in which the failure to be authorized
or to qualify, as the case may be, could, in the aggregate, have a
material adverse effect upon the financial condition, results of
operations, business or properties of each of the Company or the
Bank and their respective subsidiaries taken as a whole;
(iv) all corporate proceedings legally required in connection
with the authorization and issuance of the Junior Subordinated Debt
Securities and the Guarantee and the sale of the Junior Subordinated
Debt Securities and the issuance of the Guarantee by the Company as
contemplated by this Agreement have been taken;
(v) such counsel does not know of any pending or threatened
action, suit or proceeding before any court or governmental agency,
authority or body, to which the Company or the Bank is or may be a
party of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final Prospectus,
or of any franchises, contracts or other documents of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit to the Registration
Statement, which is not described or filed as required;
(vi) the execution and delivery by the Trust of this
Agreement, the Pricing Agreement and the Declaration, the issuance
of the Securities and the fulfillment of the terms herein and
therein contained do not conflict with, or result in a breach of, or
constitute a default under, the Declaration or, to the best
knowledge of such counsel, conflict in any material respect with, or
result in a material breach of or constitute a material default
under any material agreement, indenture or other instrument known to
such counsel to which the Trust is a party or by which it is bound,
or result in a violation of any law, administrative regulation or
court or governmental decree known to such counsel applicable to the
Trust, except that such counsel need not express any opinion with
respect to (i) matters opined upon by Messrs. Potter, Xxxxxxxx &
Corroon or (ii) the Blue Sky laws of any jurisdiction;
(vii) the execution and delivery by the Company of this
Agreement, the Pricing Agreement, the Guarantee, the Indenture and
the Declaration, the issuance of the Junior Subordinated Debt
Securities and the Guarantee and the fulfillment of the terms herein
and therein contained do not conflict with, or result in a breach
of, or constitute a default under, the Company's charter or bylaws
or, to the best knowledge of such counsel, conflict in any material
respect with, or result in a
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material breach of or constitute a material default under any
material agreement, indenture or other instrument known to such
counsel to which the Company or the Bank is a party or by which it
is bound, or result in a violation of any law, administrative
regulation or court or governmental decree known to such counsel
applicable to the Company or the Bank, except that such counsel need
not express any opinion with respect to (i) matters opined upon by
Messrs. Piper & Marbury or (ii) the Blue Sky laws of any
jurisdiction;
(viii) all of the outstanding capital stock of the Bank is
duly authorized, validly issued, fully paid and (except as provided
in 12 U.S.C. Section 55, as amended) nonassessable and owned by the
Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(ix) all of the issued and outstanding Common Securities of
the Trust are owned directly or indirectly by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity;
(x) the Property Trustee is the record holder of Junior
Subordinated Debt Securities and no security interest, mortgage,
pledge, lien, encumbrance, claim or equity is noted thereon or on
the securities register;
(xi) the Company is not an "investment company" within the
meaning of Section 3(a) of the Investment Company Act of 1940, as
amended, and is not subject to regulation under such Act;
(xii) this Agreement, the Pricing Agreement, the Guarantee,
the Indenture and the Declaration have been duly authorized,
executed and delivered by the Company; and each of the Guarantee and
the Indenture is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally from time
to time in effect or by general equitable principles, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether such enforceability is
considered in equity or at law;
(xiii) each of the Guarantee, the Indenture and the
Declaration has been duly qualified under, and complies in all
material respects with the requirements of, the Trust Indenture Act;
(xiv) the Junior Subordinated Debt Securities, when executed
and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Trust at the Closing Date, will be
legal, valid and binding
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obligations of the Company entitled to the benefits of the Indenture
and enforceable in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other
laws relating to or affecting the enforcement of creditors' rights
generally from time to time in effect or by general equitable
principles, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
such enforceability is considered in equity or at law;
(xv) the Trust and the Company jointly meet the requirements
for use of Form S-3 under the 1933 Act. The Registration Statement
is effective under the 1933 Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission;
(xvi) each of the Securities, the Guarantee and the Junior
Subordinated Debt Securities conforms in all material respects as to
legal matters to the descriptions thereof in the Prospectus (as
amended or supplemented, if applicable);
(xvii) the Trust is not an "investment company" within the
meaning of Section 3(a) of the Investment Company Act of 1940, as
amended, and is not subject to regulation under such Act; and
(xviii) if the Securities being delivered on the Closing Date
are to be listed on any stock exchange, authorization therefor has
been given, subject to official notice of issuance and evidence of
satisfactory distribution, or the Trust has filed a preliminary
listing application and all the required supporting documents with
respect to the Securities with such stock exchange and such counsel
has no reason to believe that the securities will not be authorized
for listing, subject to official notice of issuance and evidence of
satisfactory distribution.
In addition, such counsel shall state that "The Registration
Statement and the Prospectus, as amended or supplemented, if applicable
(except as to the financial statements and schedules and any other
financial and statistical data contained or incorporated by reference
therein, as to which no opinion is expressed), complied, as of the date
the Prospectus was first filed with the Commission pursuant to Rule 424,
and comply, as of the date hereof, as to form in all material respects
with the requirements of the 1933 Act and the rules and regulations of the
Commission under the 1933 Act (the "Rules"). In passing upon the form of
such documents, I have necessarily assumed the correctness and
completeness of the statements made or included therein by the Trust and
take no responsibility for the accuracy, completeness or fairness of the
statements respecting the Trust contained therein except insofar as such
statements relate to the description of the Securities. However, in
connection with the preparation of the Registration Statement and the
Prospectus, I have had conferences with certain trustees or officers and
other representatives of the Trust and the Company, and my examination of
the Registration Statement and the Prospectus and my discussions in such
conferences did not disclose to me any information (relying as to the
materiality of any such information primarily upon
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trustees or officers and other representatives of the Trust and the
Company) which gave me reason to believe that either the Registration
Statement or the Prospectus, as amended or supplemented, if applicable
(except as to the financial statements and schedules and any other
financial and statistical data contained or incorporated by reference
therein, as to which no belief is expressed), contained, as of the date
the Prospectus was first filed with the Commission pursuant to Rule 424,
or contains, as of the date hereof, any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, as amended or supplemented, if applicable, in light of the
circumstances under which they were made), not misleading."
In giving such opinion, such counsel may rely (x) as to matters of
fact, to the extent they deem proper, upon certificates of trustees or
officers of the Trust or the Company, public officials and others, and (y)
as to matters of law if other than the law of the United States or New
York, on the opinions of local counsel retained by the Trust or the
Company, provided that such counsel is satisfactory to the Representatives
and counsel retained by the Representatives on behalf of the Underwriters.
(2) if reasonably required by the Representatives, from [_________],
special tax counsel to the Trust and the Company, to the following effect:
(i) the Trust will be classified as a grantor trust and not
as an association taxable as a corporation; for United States
federal income tax purposes, each holder of Securities will be
considered the owner of an undivided interest in the Junior
Subordinated Debt Securities, and each holder will be required to
include in its gross income its allocable share of income on the
Junior Subordinated Debt Securities and any original issue discount
accrued with respect to its allocable share of the Junior
Subordinated Debt Securities;
(ii) the Junior Subordinated Debt Securities will be
classified for United States federal income tax purposes as
indebtedness of the Company; and
(iii) the statements set forth in the Prospectus under the
caption "Certain United States Federal Income Tax Consequences,"
insofar as they purport to describe the provisions of law referred
to therein, provide a fair summary of such consequences.
(3) from Messrs. Potter Xxxxxxxx & Xxxxxxx, special Delaware
counsel to the Trust, to the following effect and covering such additional
matters as the Underwriter may reasonably request:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act.
(ii) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (a) to own
its properties and conduct its business (b) to execute and deliver,
and to perform its obligations under, the Agreements to which it is
a party, and (c) to issue and perform its obligations under the
Trust Preferred Securities, all as described in the Declaration.
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees, enforceable against the
Company and the Trustees, respectively, in accordance with its
terms.
(iv) Under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of the
Agreements to which it is a party, and the performance by the Trust
of its obligations thereunder, have been duly authorized by all
necessary action on the part of the Trust.
(v) The Common Securities have been duly authorized by the
Declaration and once duly and validly issued in accordance with the
Declaration will represent valid undivided beneficial interests in
the assets of the Trust.
(vi) The Trust Preferred Securities have been duly
authorized by the Declaration and once duly and validly issued in
accordance with the Declaration will represent valid and fully paid
and, subject to the qualifications set forth in number (vii) below,
non-assessable undivided beneficial interests in the assets of the
Trust.
(vii) The Trust Preferred Securityholders, as beneficial
owners of Trust Preferred Securities on the Trust, will be entitled
to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware, except that the
Trust Preferred Securityholders may be obligated to (a) provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Trust
Preferred Securities Certificates and the issuance of replacement
Trust Preferred Securities Certificates, and (b) provide security or
indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the
Declaration.
(viii) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Trust Securities is not subject to
preemptive rights.
(ix) No authorization, approval or other action by, and
notice to or filing with, any governmental authority or regulatory
body of the State of Delaware is required for the issuance and sale
of the Trust Securities.
(x) Assuming that the Trust is treated is a grantor trust
or partnership for federal income tax purposes, the Securityholders
(other than those holders of Trust Securities who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result of
their participation in the Trust, and the Trust will not be liable
for any income tax imposed by the State of Delaware.
(xi) The (a) purchase of the Junior Subordinated Debt
Securities by the Trust, (b) the distribution of the Junior
Subordinated Debt Securities by the Trust in the circumstances
contemplated by the Declaration, and (c) the performance by the
Trust of the Agreements to which it is a party and the consummation
of the transactions contemplated thereunder, will not conflict
with or result in a breach or violation of any of the terms or
provisions of the Certificate or Declaration or any statute, order,
rule or regulation the State of Delaware or any governmental agency
or body of the State of Delaware having jurisdiction over the
Trust or any of its properties.
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(z) issue and perform its obligations under the Trust Preferred
Securities and the Common Securities.
(ii) Assuming the Declaration has been duly authorized,
executed and delivered by the Trustees and the Company, the
Declaration is the valid and binding obligation of the Company and
the Trustees, enforceable against the Company and the Trustees in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally from time to time in
effect or by general equitable principles, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether such enforceability is
considered in equity or at law.
(iii) Under the Delaware Act and the Declaration, the
execution and delivery by the Trust of this Agreement and the
Pricing Agreement, and the performance by the Trust of its
obligations thereunder, have been duly authorized by all necessary
business trust action on the part of the Trust; and this Agreement
and the Pricing Agreement have been duly executed and delivered by
the Trust under the laws of Delaware.
(iv) The Common Securities have been duly authorized by the
Declaration and are validly issued and represent undivided
beneficial interests in the assets of the Trust; and under the
Delaware Act and the Declaration, the issuance of the Common
Securities is not subject to preemptive rights.
(v) The Trust Preferred Securities have been duly authorized
by the Declaration and, when delivered to and paid for pursuant to
this Agreement, will be validly issued and fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust; the holders of the Trust Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State
of Delaware; and under the Delaware Act and the Declaration, the
issuance of the Trust Preferred Securities is not subject to
preemptive rights. Such counsel may note that the Preferred Security
holders may be obligated, pursuant to the Declaration, to (i)
provide indemnity and/or security in connection with and pay taxes
or governmental charges arising from transfers of Preferred Security
Certificates and the issuance of replacement Preferred Security
Certificates, and (ii) provide security and indemnity in connection
with requests of or directions to the Property Trustee to exercise
its rights and powers under the Declaration.
(vi) The issuance and sale by the Trust of the Trust Preferred
Securities and Common Securities; the execution, delivery and
performance by the Trust of this Agreement and the Pricing
Agreement; the consummation of the transactions contemplated herein
and therein; and compliance by the Trust with its obligations
hereunder and thereunder will not violate any of the provisions of
the Certificate of Trust or the Declaration, or any applicable
Delaware law or administrative regulation.
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(vii) Assuming that the Trust derives no income from or in
connection with sources within the State of Delaware and has no
assets, activities (other than having a Delaware Trustee as required
by the Delaware Act and the filing of documents with the Delaware
Secretary of State) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by the
Trust solely in connection with the issuance and sale of the Common
Securities and the Trust Preferred Securities or the purchase by the
Trust of the Junior Subordinated Debt Securities and the Guarantees
except such as have been obtained and such as may be required by
state securities laws.
(c) The Underwriter shall have received on the Closing Date from Messrs.
[________________], counsel retained by the Representatives on behalf of the
Underwriters, an opinion with respect to the Securities, the Registration
Statement and the Prospectus in the form customarily given by such firm,
including an opinion to the effect that the Registration Statement and the
Prospectus, as amended or supplemented, if applicable (except as to the
financial statements and schedules and any other financial and statistical data
contained or incorporated by reference therein, as to which no opinion need be
expressed) comply as to form in all material respects with the Act.
(d) The Underwriter shall have received on the Closing Date the opinion of
[______________],counsel to Bankers Trust Company, in form and substance
satisfactory to counsel to the Underwriters to the effect that:
(1) Bankers Trust Company has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the
State of New York;
(2) each of the Declaration, the Indenture and the Guarantee has
been duly authorized, executed and delivered by the Property Trustee, the
Indenture Trustee and the Guarantee Trustee, respectively, and constitutes
a legal, valid and binding instrument enforceable against the Property
Trustee, Indenture Trustee and Guarantee Trustee in accordance with its
respective terms, except as enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or
other laws relating to or affecting the enforcement of creditors' rights
generally from time to time in effect or by general equitable principles,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether such enforceability is
considered in equity or at law;
(3) no consent, approval, authorization or order of any federal or
New York State banking authority is required for the consummation of the
transactions contemplated by the Declaration, the Indenture or the
Guarantee by the Property Trustee, the Indenture Trustee or the Guarantee
Trustee, respectively; and
(4) neither the execution and delivery of the Declaration, the
Indenture or the Guarantee, the consummation of any other of the
transactions herein or therein contemplated nor the fulfillment of the
terms hereof or thereof will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter or
by-laws of Bankers Trust Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which Bankers Trust
Company is a party or bound or any
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judgment, order or decree known to such counsel to be applicable to
Bankers Trust Company of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over Bankers
Trust Company.
(e) The Underwriter shall have received on the Closing Date the opinion of
[____________], counsel to Bankers Trust (Delaware), in form and substance
satisfactory to counsel to the Underwriters to the effect that:
(1) The Delaware Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the
State of Delaware, with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of,
the Declaration.
(2) The execution, delivery and performance by the Delaware Trustee
of the Declaration have been duly authorized by all necessary corporate
action on the part of the Delaware Trustee; the Declaration has been duly
executed and delivered by the Delaware Trustee, and constitutes the valid
and binding obligation of the Delaware Trustee, enforceable against the
Delaware Trustee in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally from time to time in effect or
by general equitable principles, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing, regardless of
whether such enforceability is considered in equity or at law.
(3) The execution, delivery and performance of the Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
Articles of Organization or Bylaws of the Delaware Trustee.
(4) No consent, approval or authorization of, or registration with
or notice to, any New York or federal banking authority is required for
the execution, delivery or performance by the Delaware Trustee of the
Declaration.
(5) To the best of such counsel's knowledge, based on a review of
the certificates representing the Junior Subordinated Debt Securities, no
security interest, mortgage, pledge, lien, encumbrance, claim or equity is
noted thereon.
(f) On the Closing Date, the Representatives shall have received from
KPMG Peat Marwick LLP a letter, dated as of the Closing Date, in form and
substance reasonably satisfactory to the Representatives confirming that they
are independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included or incorporated in the Registration Statement
and the Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; the
carrying out of certain specified procedures (but not an
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examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect to
the comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors, audit and examining committees of
the Company and the Bank, and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events subsequent
to the date of the most recent audited financial statements in or
incorporated in the Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus do not
comply in form in all material respects with applicable accounting
requirements and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange
Act; or that said unaudited financial statements are not in
conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement
and the Prospectus;
(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated in the
Registration Statement and the Prospectus, there were at a specified
date not more than five business days prior to the date of such
letter, any changes in the capital stock (other than issuances or
cancellations under the Company's Long-Term Incentive Stock Plan,
[Restricted Stock or Restricted Stock Election Plans and exercises
of options under the Company's Stock Option Plans]) or long-term
indebtedness (other than scheduled repayments of such debt) or any
decrease in stockholders' equity of the Company and its subsidiaries
as compared with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration Statement
and the Prospectus, except for changes or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur or which are described in such letter, or, for the period
from the date of the most recent financial statements included or
incorporated in the Registration Statement and the Prospectus to the
end of the most recent period for which the Company has prepared
internal financial statements, there were any decreases as compared
with the corresponding period in the prior fiscal year in the total
amounts of net interest income or income before income taxes of the
Company and its subsidiaries or in the total or per share amounts of
net income of the Company and its subsidiaries, except in all
instances for changes or decreases which the Registration Statement
and the Prospectus disclose have occurred or may occur or which are
described in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary by the
Representatives; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration Statement
and the Prospectus do not agree with the amounts set forth in the
unaudited financial statements for the same periods or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements included
or incorporated in the Registration Statement and the Prospectus;
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(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Prospectus and in Exhibit 12 to the Registration Statement,
including the information included or incorporated in Items 1, 6 and 7 of
the Company's Annual Report on Form 10-K, incorporated in the Registration
Statement and the Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" included or incorporated in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and the
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation; and
(iv) if pro forma financial statements are included or incorporated
in the Registration Statement and Prospectus, on the basis of a reading of
the unaudited pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the Company and
the acquired company who have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to believe
that the pro forma financial statements do not comply in form in all
material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements.
References to the Registration Statement and the Prospectus in this
paragraph (f) are to such documents as amended and supplemented at the date of
the letter.
(g) The Company shall have furnished to the Representatives a certificate
signed by a senior officer of the Company in form reasonably satisfactory to
them that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of such
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied at or prior to such
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated in the Prospectus, there has been no material
adverse change in the financial or business condition or earnings of the
Company and its subsidiaries, considered as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus.
(h) The Trust shall have furnished to the Representatives a certificates
signed by an Administrative Trustee in a form reasonably satisfactory to them
that the representations and warranties of the Trust in this Agreement are true
and correct in all material respects on and as of such Closing Date with the
same effect as if made on the Closing Date and the Trust has complied with all
of the agreements and satisfied all of the conditions on its part to be
performed or satisfied at or prior to such Closing Date.
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(i) If the Securities are to be listed on the New York Stock Exchange,
Inc. or any other national stock exchange, such Securities shall have been duly
listed, subject to notice of issuance, on such stock exchange.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, such Closing Date by the Representatives. Notice of such cancellation
shall be given to the Trust and the Company in writing or by telephone or
telegraph confirmed in writing.
SECTION 8. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination prior to delivery of and payment for the Securities at the
applicable Closing Date, in the absolute discretion of the Representatives, by
written notice given to the Trust and the Company, or in the absolute discretion
of the Trust and the Company, by written notice given to the Representatives,
if, on or prior to such date, (a) there has been any material adverse change in
the financial or business condition or earnings of the Company or its
subsidiaries considered as one enterprise, (b) on or after the date hereof,
there has been an outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war,
the effect of which on the financial markets of the United States is such as to
make it, in the reasonable judgment of the Representatives, impracticable to
market such Securities, or in the reasonable judgment of the Company,
impracticable to issue such Securities, (c) trading in any securities of the
Trust, the Company or the Bank has been suspended by the Commission or a
national securities exchange, or trading generally on the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, or a
banking moratorium has been declared by either federal or New York authorities,
(d) there shall have occurred a downgrading in the rating assigned to any of
the Company's debt securities or preferred stock by any "nationally recognized
statistical rating organization" (as defined by the Commission for purposes of
Rule 436(g) under the Act), or (e) any such statistical rating organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock which, in the professional judgment of the
Representatives, would have, with respect to the purchase of the Securities, a
material adverse effect on the price and/or value of the Securities.
SECTION 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail on the Closing Date to purchase the Securities that
it or they are obligated to purchase hereunder (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any
substitute underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be approved by the Representatives
and upon the terms herein set forth; if, however, the Representatives have not
completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10% of
the aggregate principal amount of Securities, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of Securities, the Company shall be entitled for an
additional 24-hour period to find one or
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more substitute underwriters satisfactory to the Representatives in their
reasonable discretion to purchase such Defaulted Securities.
In the event of any such default either the Representatives or the Trust
and the Company shall have the right to postpone the Closing Date for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements
relating to the purchase of the Securities.
If the principal amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of Securities, and neither the Representatives nor
the Company make arrangements pursuant to this Section 9 within the period
stated for the purchase of the Defaulted Securities, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter to the
Company except as provided in Section 6.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
A substitute underwriter hereunder shall be an Underwriter for all
purposes of this Agreement.
SECTION 10. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Representatives shall be directed to ____________, attention __________; and
notices to each of the Trust and the Company shall be directed to it at its
office at 000 Xxxxx Xxxxxx - Xxxxx 0, Xxx Xxxx, Xxx Xxxx 00000, attention:
Xxxxxxx X. Saali, Senior Vice President of the Company, with a copy to Xxxxxxx
X. Xxxxxxxxx, Xx., Esq., Senior Vice President of the Company, at 000 Xxxxx
Xxxxxx - Xxxxx 0, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 11. PARTIES. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriters, the Trust and the
Company and their respective successors and legal representatives. Nothing
expressed or mentioned in this Agreement or the Pricing Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Trust and the Company and their respective successors and
legal representatives and the controlling persons and trustees, officers and
directors referred to in Section 6 hereof and their respective successors, heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or the Pricing Agreement or any provision herein
or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Trust and the Company and their
respective successors and legal representatives and said controlling persons,
trustees, officers and directors and their respective successors, heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriter shall be deemed to
be a successor by reason merely of such purchase.
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SECTION 12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
trustees, officers and directors and controlling persons referred to in Section
6 hereof, and no other person will have any right or obligation hereunder.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
[REPUBLIC NEW YORK CAPITAL ___ ]
By: ____________________________
Administrative Trustee
REPUBLIC NEW YORK CORPORATION
By: ____________________________
CONFIRMED AND ACCEPTED,
as of the date first
above written:
[Insert rep names]
BY: [UNDERWRITER]
By: ___________________________________
Authorized Signatory
for themselves and as Representatives
of other underwriters named in Schedule I
hereto.
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Schedule I
LIST OF UNDERWRITERS
Underwriter Amount
----------- ------
27
EXHIBIT A
_____________ PREFERRED SECURITIES
[ REPUBLIC NEW YORK CAPITAL __ ]
(A DELAWARE BUSINESS TRUST)
____TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT [$___ ] PER TRUST PREFERRED SECURITY) GUARANTEED
TO A LIMITED EXTENT BY REPUBLIC NEW YORK CORPORATION
PRICING AGREEMENT
-----------------
_______________, 199__
[UNDERWRITER]
Dear Sirs:
Reference is made to the Underwriting Agreement, dated __________, ____
(the "Underwriting Agreement"), relating to the purchase, by the Underwriters
named in Schedule I thereto (the "Underwriters"), of the above-referenced ___
Trust Preferred Securities (the "Trust Preferred Securities"), of [ Republic New
York Capital __ ], a business trust formed under the laws of Delaware (the
"Trust").
Capitalized terms in this Pricing Agreement that are not defined herein
have the meanings assigned in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, each of the Trust and
the Company agree with each of the several Underwriters as follows:
1. The initial public offering price for the Securities, and the
purchase price per Security for the Securities to be paid by the several
Underwriters, determined as provided in said Section 2, shall be [$____].
2. The compensation per Trust Preferred Security to be paid by the
Company to the several Underwriters in respect of their commitments
hereunder shall be $_____.
In view of the fact that the proceeds of the sale of the Trust Preferred
Securities will be invested in Junior Subordinated Debt Securities of the
Company, the Company has agreed to pay to the Underwriters, as compensation for
their arranging the investment therein of such proceeds, $_____ per Trust
Preferred Security (or $_______ in the aggregate); provided, that such
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compensation for sales of ______ or more Trust Preferred Securities to a single
purchaser will be $_____ per Trust Preferred Security. Therefore, to the extent
of such sales, the actual amount of Underwriters' compensation will be less than
the aggregate amount specified in the preceding sentence. See "Underwriting."
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriter, the Trust and the Company in
accordance with its terms.
Very truly yours,
[ REPUBLIC NEW YORK CAPITAL __ ]
By: ________________________
Administrative Trustee
REPUBLIC NEW YORK CORPORATION
By: ________________________
CONFIRMED AND ACCEPTED, as of the date first above written:
[Insert rep names]
By: [UNDERWRITER]
By: _______________________
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