AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1997
Registration No. 333-20409
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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REPUBLIC NEW YORK CORPORATION REPUBLIC NEW YORK CAPITAL I
(Exact name of registrant as specified (Exact name of registrant as
in its charter) specified in its charter)
MARYLAND DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
6712 6719
(Primary standard industrial (Primary standard industrial
classification code number) classification code number)
13-2764867 13-7106438
(I.R.S. employer (I.R.S. employer
identification no.) identification no.)
452 FIFTH AVENUE 452 FIFTH AVENUE
NEW YORK, NEW YORK 10018 NEW YORK, NEW YORK 10018
(212) 525-6100 (212) 525-6100
(Address, including zip code, and (Address, including zip code, and
telephone number, including area telephone number, including area
code, or registrant's code, of registrant's
principal executive offices) principal executive offices)
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William F. Rosenblum, Jr., Esq.
Senior Vice President, Deputy General Counsel and Secretary
Republic New York Corporation
452 Fifth Avenue
New York, NY 10018
(212) 525-6100
(Name, address, including zip code, and telephone number,
including area code, of agent for service of each registrant)
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The Registrants hereby amend this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrants shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE
ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED APRIL 21, 1997
PROSPECTUS REPUBLIC NEW YORK CAPITAL I
OFFER TO EXCHANGE ITS 7 3/4% CAPITAL TRUST PASS-
THROUGH SECURITIESsm (TRUPSsm) WHICH HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING 7 3/4% CAPITAL TRUST PASS-
THROUGH SECURITIESsm (TRUPSsm)
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
REPUBLIC NEW YORK CORPORATION
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1997, UNLESS EXTENDED.
Republic New York Capital I, a trust formed under the laws of
the State of Delaware (the "Trust"), and Republic New York Corporation, a
Maryland corporation, as Depositor ("Republic" or the "Corporation"),
hereby offer, upon the terms and subject to the conditions set forth in
this Prospectus (as the same may be amended or supplemented from time to
time, the "Prospectus") and in the accompanying Letter of Transmittal
(which together constitute the "Exchange Offer"), to exchange up to
$150,000,000 aggregate Liquidation Amount of its 7 3/4% Capital Trust
Pass-through Securities sm (TRUPSsm)(the "Exchange Capital
Securities") which have been registered under the Securities Act of 1933,
as amended (the "Securities Act"), pursuant to a Registration Statement (as
defined herein) of which this Prospectus constitutes a part, for a like
Liquidation Amount of its outstanding 7 3/4% Capital Trust Pass-through
Securities sm (TRUPSsm)(the "Old Capital Securities"), of which
$150,000,000 aggregate Liquidation Amount is outstanding. Pursuant to the
Exchange Offer, the Corporation is also exchanging its guarantee of the
payment of Distributions (as defined herein) and payments on liquidation or
redemption of the Old Capital Securities (the "Old Guarantee") for a like
guarantee of the Old Capital Securities and the Exchange Capital Securities
(the "Exchange Guarantee") and all of its 7 3/4% Junior Subordinated Debt
Securities (the "Old Junior Subordinated Debt Securities"), of which
$154,640,000 aggregate principal amount is outstanding, for a like
aggregate principal amount of its 7 3/4% Junior Subordinated Debt
Securities (the "Exchange Junior Subordinated Debt Securities"), which
Exchange Guarantee and Exchange Junior Subordinated Debt Securities also
have been registered under the Securities Act. The Old Capital Securities,
the Old Guarantee and the Old Junior Subordinated Debt Securities are
collectively referred to herein as the "Old Securities" and the Exchange
Capital Securities, the Exchange Guarantee and the Exchange Junior
Subordinated Debt Securities are collectively referred to herein as the
"Exchange Securities" and the exchange of the Old Securities for the
Exchange Securities is collectively referred to herein as the
"Exchange".
.
The terms of the Exchange Securities are identical in all material
respects to the respective terms of the Old Securities, except that (i) the
Exchange Securities have been registered under the Securities Act and
therefore will not be subject to certain restrictions on transfer
applicable to the Old Securities, (ii) the Exchange Capital Securities will
not provide for any increase in the Distribution rate thereon and (iii) the
Exchange Junior Subordinated Debt Securities will not provide for any
increase in the interest rate thereon. See "Description of the Exchange
Securities" and "Description of the Old Securities"
Each broker-dealer that receives Exchange Securities (as defined
herein) for its own account pursuant to the Exchange Offer must acknowledge
that it will deliver a prospectus in connection with any resale of such
Exchange Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Securities received in exchange for Old Securities (as defined
herein) acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Trust and the Corporation have
agreed that they will make this Prospectus available to any broker-dealer
for use in connection with any such resale until the close of business on
the 180th day following the Expiration Date (as defined herein). See "Plan
of Distribution".
SEE "RISK FACTORS" COMMENCING ON PAGE 17 FOR CERTAIN INFORMATION THAT
SHOULD BE CONSIDERED BY HOLDERS WHO TENDER OLD CAPITAL SECURITIES IN THE
EXCHANGE OFFER.
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE EXCHANGE CAPITAL SECURITIES WILL BE ISSUED, AND MAY BE TRANSFERRED,
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100
EXCHANGE CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION OF
EXCHANGE CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH EXCHANGE
CAPITAL SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE
RECEIPT OF DISTRIBUTIONS ON SUCH EXCHANGE CAPITAL SECURITIES, AND SUCH
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH EXCHANGE
CAPITAL SECURITIES.
The date of this Prospectus is , 1997.
<PAGE>
The Exchange Capital Securities, the Exchange Junior Subordinated
Debt Securities and Exchange Guarantee are being offered for exchange in
order to satisfy certain obligations of the Corporation and the Trust under
the Registration Agreement dated November 27, 1996 (the "Registration
Agreement") among the Corporation, the Trust and the Initial Purchaser (as
defined herein). In the event that the Exchange Offer is consummated, any
Old Capital Securities which remain outstanding after consummation of the
Exchange Offer and the Exchange Capital Securities issued in the Exchange
Offer will vote together as a single class for purposes of determining
whether holders of the requisite percentage in outstanding Liquidation
Amount thereof have taken certain actions or exercised certain rights under
the Declaration (as defined herein).
The Exchange Capital Securities and the Old Capital Securities
(together, the "Capital Securities") represent beneficial ownership
interests in the Trust. The Corporation is the owner of all of the
beneficial ownership interests represented by common securities of the
Trust (the "Common Securities" and, collectively with the Capital
Securities, the "Trust Securities"). Bankers Trust Company is the Property
Trustee of the Trust. The Trust exists for the sole purposes of (i) issuing
and selling the Trust Securities and effecting the Exchange Offer for the
Exchange Capital Securities, (ii) investing the proceeds from the sale of
the Old Capital Securities and the Common Securities in the Old Junior
Subordinated Debt Securities, (iii) exchanging the Old Junior Subordinated
Debt Securities for the Exchange Junior Subordinated Debt Securities and
(iv) engaging in other activities necessary, advisable or incidental
thereto. The Junior Subordinated Debt Securities will mature on November
15, 2026 (the "Stated Maturity"). The Capital Securities will have a
preference under certain circumstances with respect to cash distributions
and amounts payable on liquidation or redemption over the Common
Securities. See "Description of the Exchange Securities--Description of
Capital Securities--Subordination of Common Securities."
As used herein, (i) the "Indenture" means the Junior Subordinated
Indenture, as amended and supplemented from time to time, between the
Corporation and Bankers Trust Company, as trustee (the "Debenture
Trustee"), (ii) the "Declaration" means the Amended and Restated
Declaration of Trust relating to the Trust among the Corporation, as
Depositor, Bankers Trust Company, as Property Trustee (the "Property
Trustee"), Bankers Trust (Delaware), as Delaware Trustee (the "Delaware
Trustee"), and the Administrative Trustees named therein (collectively,
with the Property Trustee and the Delaware Trustee, the "Issuer Trustees")
and (iii) the "Guarantee Agreement" means the Guarantee Agreement relating
to the Guarantee between the Corporation and Bankers Trust Company, as
trustee (the "Guarantee Trustee"). In addition, as the context may require,
unless expressly stated otherwise, (i) "Capital Securities" includes the
Old Capital Securities and the Exchange Capital Securities, (ii) "Junior
Subordinated Debt Securities" includes the Old Junior Subordinated Debt
Securities and the Exchange Junior Subordinated Debt Securities and (iii)
"Guarantee" includes the Old Guarantee and the Exchange Guarantee.
Holders of the Capital Securities and the holder of the Common
Securities will be entitled to receive cumulative cash distributions, in
each case arising from the payment of interest on the Junior Subordinated
Debt Securities accruing from the date of original issuance, and payable
semi-annually in arrears on May 15 and November 15 of each year, commencing
May 15, 1997, at the annual rate of 7.75% of the Liquidation Amount of
$1,000 per Capital Security and at the annual rate of 7.75% of the
Liquidation Amount of $1,000 per Common Security ("Distributions"). Subject
to certain exceptions, the Corporation has the right to defer payments of
interest on the Junior Subordinated Debt Securities at any time or from
time to time for a period not exceeding 10 consecutive semi-annual periods
with respect to each deferral period (each, an "Extension Period");
provided, however, that no Extension Period may end on a date other than an
Interest Payment Date (as defined herein) or extend beyond the Stated
Maturity of the Junior Subordinated Debt Securities. No interest shall be
due and payable during an Extension Period, except at the end thereof. Upon
the termination of any Extension Period and the payment of all interest on
the Junior Subordinated Debt Securities then accrued and unpaid (together
with interest thereon at the rate of 7.75%, compounded semi-annually, to
the extent permitted by applicable law), the Corporation may elect to begin
a new Extension Period, subject to the requirements described herein. If
interest
2
<PAGE>
payments on the Junior Subordinated Debt Securities are so deferred, during
any Extension Period, Distributions on the Trust Securities will also be
deferred and the Corporation will not be permitted, subject to certain
exceptions described herein, to (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Corporation's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation that rank pari passu with or junior in
interest to the Junior Subordinated Debt Securities or (iii) make any
guarantee payments with respect to any guarantee by the Corporation of the
debt securities of any subsidiary of the Corporation if such guarantee
ranks pari passu with or junior in interest to the Junior Subordinated Debt
Securities except for certain payments described in the section
"Description of the Exchange Securities - Description of Junior
Subordinated Debt Securities -- Option to Extend Interest Payment Period".
During an Extension Period, interest on the Junior Subordinated Debt
Securities will continue to accrue (and the amount of Distributions to
which holders of the Capital Securities are entitled will accumulate) at
the rate of 7.75% per annum, compounded semi-annually, and holders of
Capital Securities will be required to accrue interest income for United
States federal income tax purposes. There is no limitation on the number of
times that the Corporation may elect to begin an Extension Period. See
"Description of the Exchange Securities--Description of Junior Subordinated
Debt Securities--Option to Extend Interest Payment Period" and "Certain
Federal Income Tax Consequences--Interest Income and Original Issue
Discount."
The Corporation has, through the Guarantee, the Declaration, the
Junior Subordinated Debt Securities and the Indenture, taken together,
fully, irrevocably and unconditionally guaranteed all of the Trust's
obligations under the Capital Securities. No single document standing alone
or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Trust's obligations under the Capital
Securities. See "Relationship Among the Capital Securities, the Junior
Subordinated Debt Securities and the Guarantee--Full and Unconditional
Guarantee." The Corporation has agreed to guarantee the payment of
Distributions and payments on liquidation or redemption of the Capital
Securities, but only in each case to the extent of funds held by the Trust,
as described herein. See "Description of the Exchange
Securities--Description of Guarantee." If the Corporation does not make
interest payments on the Junior Subordinated Debt Securities held by the
Trust, the Trust will have insufficient funds to pay Distributions on the
Capital Securities. The Guarantee does not cover payment of Distributions
when the Trust does not have sufficient funds to pay such Distributions. In
such event, a holder of Capital Securities may institute a legal proceeding
directly against the Corporation for enforcement of payment to such holder
of the principal of or interest on Junior Subordinated Debt Securities
having a principal amount equal to the aggregate Liquidation Amount of the
Capital Securities held by such holder (a "Direct Action"). See
"Description of the Exchange Securities--Description of the Exchange
Securities--Description of Junior Subordinated Debt Securities--Enforcement
of Certain Rights by Holders of Capital Securities." The obligations of the
Corporation under the Guarantee and the Junior Subordinated Debt Securities
are subordinate and junior in right of payment to all Senior Debt (as
defined herein) of the Corporation. See "Description of the Exchange
Securities--Description of Junior Subordinated Debt
Securities--Subordination".
The Trust Securities are subject to mandatory redemption, (i) in
whole, but not in part, at the Stated Maturity of the Junior Subordinated
Debt Securities upon redemption thereof at a redemption price equal to the
principal amount of, plus accrued interest on, the Junior Subordinated Debt
Securities (the "Maturity Redemption Price") and (ii) in whole or in part
on or after November 15, 2006 contemporaneously with the optional
redemption by the Corporation of the Junior Subordinated Debt Securities at
a redemption price (the "Optional Redemption Price") equal to the Optional
Prepayment Price (as defined below). Either of the Maturity Redemption
Price or the Optional Redemption Price may be referred to herein as the
"Redemption Price". See "Description of the Exchange
Securities--Description of Capital Securities--Redemption." Subject to the
Corporation having received prior approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") to do so if then required
under applicable capital guidelines or policies of the Federal Reserve, the
Junior Subordinated Debt Securities
3
<PAGE>
are redeemable prior to the Stated Maturity at the option of the
Corporation at any time on or after November 15, 2006, in whole or in part,
at a redemption price (the "Optional Prepayment Price") equal to 103.66% of
the principal amount thereof on November 15, 2006, declining ratably on
each November 15 thereafter to 100% on or after November 15, 2016, plus
accrued but unpaid interest thereon to the date of redemption. See
"Description of the Exchange Securities--Description of Junior Subordinated
Debt Securities--Optional Redemption".
The Corporation, as the holder of the outstanding Common
Securities, has the right at any time (including, without limitation, upon
the occurrence of a Tax Event (as defined herein)) to terminate the Trust
and cause a Like Amount (as defined herein) of the Junior Subordinated Debt
Securities to be distributed to the holders of the Trust Securities upon
liquidation of the Trust, subject to prior approval of the Federal Reserve
to do so if then required under applicable capital guidelines or policies
of the Federal Reserve. In the event of such a termination of the Trust,
after satisfaction of liabilities to creditors of the Trust as required by
applicable law, the holders of the Capital Securities generally will be
entitled to receive a Liquidation Amount of $1,000 per Capital Security
plus accumulated and unpaid Distributions thereon to the date of payment,
which payment shall be in the form of a distribution of a Like Amount of
Junior Subordinated Debt Securities, subject to certain exceptions. In
addition, if the Junior Subordinated Debt Securities are distributed to the
holders of the Trust Securities as a result of the occurrence of a Tax
Event and such Tax Event continues notwithstanding such distribution, the
Corporation has the right to prepay the Junior Subordinated Debt Securities
in whole, but not in part, at the Tax Event Prepayment Price. See
"Description of the Exchange Securities--Description of Capital
Securities--Liquidation of the Trust and Distribution of Junior
Subordinated Debt Securities" and "Description of the Junior Subordinated
Debt Securities - Tax Event Prepayment."
The Exchange Capital Securities will be issued, and Exchange
Capital Securities may be transferred, only in blocks having a Liquidation
Amount of not less than $100,000 (100 Exchange Capital Securities). Any
transfer, sale or other disposition of Exchange Capital Securities in a
block having a Liquidation Amount of less than $100,000 shall be deemed to
be void and of no legal effect whatsoever. Any such transferee shall be
deemed not to be the holder of such Exchange Capital Securities for any
purpose, including but not limited to the receipt of Distributions on such
Exchange Capital Securities, and such transferee shall be deemed to have no
interest whatsoever in such Exchange Capital Securities.
Based on existing interpretations by the staff of the Securities
and Exchange Commission (the "Commission") set forth in several no-action
letters to third parties and subject to the two immediately following
sentences, the Corporation and the Trust believe that the Exchange Capital
Securities, the Exchange Guarantee and the Exchange Junior Subordinated
Debt Securities issued pursuant to the Exchange Offer may be offered for
resale, resold and otherwise transferred by a holder thereof (other than a
holder who is a broker-dealer) without further compliance with the
registration and prospectus delivery requirements of the Securities Act;
provided, that, such Exchange Capital Securities are acquired in the
ordinary course of such holder's business and such holder is not
participating, and has no arrangement or understanding with any person to
participate, in a distribution (within the meaning of the Securities Act)
of the Exchange Capital Securities. However, any holder of Old Capital
Securities who is an "affiliate" of the Trust or the Corporation or who
intends to participate in the Exchange Offer for the purpose of
distributing Exchange Capital Securities, or any broker-dealer who
purchased Old Capital Securities from the Trust to resell pursuant to Rule
144A under the Securities Act ("Rule 144A") or any other available
exemption under the Securities Act, (a) will not be able to rely on the
interpretations of the staff of the Commission set forth in the
above-mentioned no-action letters, (b) will not be permitted or entitled to
tender such Old Capital Securities in the Exchange Offer and (c) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any sale or other transfer of such Old
Capital Securities unless such sale is made pursuant to an exemption from
such requirements. In addition, as described below, if any broker-dealer
holds Old Capital Securities acquired for its own account as a result of
market-making or other trading activities and exchanges such Old Capital
Securities for Exchange Capital Securities, then such broker-dealer must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of such Exchange Capital Securities.
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Each holder of Old Capital Securities who wishes to exchange Old
Capital Securities for Exchange Capital Securities in the Exchange Offer
will be required to represent that (i) it is not an "affiliate" of the
Trust or the Corporation, (ii) any Exchange Capital Securities to be
received by it are being acquired in the ordinary course of its business
and (iii) it has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of
such Exchange Capital Securities. Each broker-dealer that receives Exchange
Capital Securities for its own account pursuant to the Exchange Offer must
acknowledge that it acquired the Old Capital Securities for its own account
as the result of market-making activities or other trading activities and
must agree that it will deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange Capital
Securities. The Letter of Transmittal states that by so acknowledging and
by delivering a prospectus, a broker-dealer will not be deemed to admit
that it is an "underwriter" within the meaning of the Securities Act. Based
on the position taken by the staff of the Commission in the no-action
letters referred to above, the Corporation and the Trust believe that
broker-dealers who acquired Old Capital Securities for their own accounts
as a result of market-making activities or other trading activities may
fulfill their prospectus delivery requirements with respect to the Exchange
Capital Securities received upon exchange of such Old Capital Securities
(other than Old Capital Securities which represent an unsold allotment from
the original sale of the Old Capital Securities) with the prospectus
prepared for the Exchange Offer so long as it contains a description of the
plan of distribution with respect to the resale of such Exchange Capital
Securities. Accordingly, subject to certain provisions set forth in the
Registration Agreement, the Corporation and the Trust have agreed that this
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of such Exchange Capital
Securities for a period commencing on the Expiration Date and ending 180
days after the Expiration Date or, if earlier, when all such Exchange
Capital Securities have been disposed of by such broker-dealer. See "Plan
of Distribution." Any broker-dealer who is an "affiliate" of the Trust or
the Corporation may not rely on such no-action letters and must comply with
the registration and prospectus delivery requirements of the Securities Act
in connection with any resale transaction. See "The Exchange Offer--Resales
of Exchange Capital Securities."
Each broker-dealer who surrenders Old Capital Securities pursuant
to the Exchange Offer will be deemed to have agreed, by execution of the
Letter of Transmittal, that, upon receipt of notice from the Corporation or
the Trust of the occurrence of any event or the discovery of any fact which
makes any statement contained or incorporated by reference in this
Prospectus untrue in any material respect or which causes this Prospectus
to omit to state a material fact necessary in order to make the statements
contained or incorporated by reference herein, in light of the
circumstances under which they were made, not misleading or of the
occurrence of certain other events specified in the Registration Agreement,
such broker-dealer will suspend the sale of Exchange Capital Securities (or
the Exchange Junior Subordinated Debt Securities, as applicable) pursuant
to this Prospectus until the Corporation or the Trust has amended or
supplemented this Prospectus to correct such misstatement or omission and
has furnished copies of the amended or supplemented Prospectus to such
broker-dealer or the Corporation or the Trust has given notice that the
sale of the Exchange Capital Securities (or the Exchange Junior
Subordinated Debt Securities, as applicable) may be resumed.
Neither the Corporation nor the Trust has sought its own
interpretive letter and there can be no assurance that the staff of the
Commission would make a similar determination with respect to the Exchange
Offer as it has in such no-action letters to third parties.
Prior to the Exchange Offer, there has been only a limited
secondary market and no public market for the Old Capital Securities. The
Exchange Capital Securities will be a new issue of securities for which
there currently is no market. Although the Initial Purchaser has informed
the Corporation and the Trust that it currently intends to make a market in
the Exchange Capital Securities, it is not obligated to do so, and any such
market-making may be discontinued at any time without notice. Accordingly,
there can be no assurance as to the development or liquidity of any market
for the Exchange Capital Securities. The Corporation and the Trust do not
presently intend to apply for listing of the Exchange Capital Securities on
the New York Stock Exchange.
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Any Old Capital Securities not tendered and accepted in the
Exchange Offer will remain outstanding and will be entitled to all the same
rights and will be subject to the same limitations applicable to the Old
Capital Securities under the Declaration (except for those rights which
terminate upon consummation of the Exchange Offer). Following consummation
of the Exchange Offer, the holders of Old Capital Securities will continue
to be subject to all of the existing restrictions upon transfer thereof and
neither the Corporation nor the Trust will have any further obligation to
such holders (other than under certain limited circumstances) to provide
for registration under the Securities Act of the Old Capital Securities
held by them. To the extent that Old Capital Securities are tendered and
accepted in the Exchange Offer, a holder's ability to sell untendered Old
Capital Securities could be adversely affected. See "Risk
Factors--Consequences of a Failure to Exchange Old Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE URGED TO READ THIS
PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING
WHETHER TO TENDER THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE
OFFER.
Old Capital Securities may be tendered for exchange prior to
5:00 p.m., New York City time, on , 1997 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is
extended by the Corporation and the Trust (in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended). Tenders of Old Capital Securities may be withdrawn at
any time prior to 5:00 p.m., New York City time, on the Expiration Date.
The Exchange Offer is not conditioned upon any minimum Liquidation Amount
of Old Capital Securities being tendered for exchange. However, the
Exchange Offer is subject to certain events and conditions which may be
waived by the Corporation or the Trust and to the terms and provisions of
the Registration Agreement. Old Capital Securities may be tendered in whole
or in part having a Liquidation Amount of not less than $100,000 (100 Old
Capital Securities) or any integral multiple of $1,000 Liquidation Amount
(1 Old Capital Security) in excess thereof. The Corporation has agreed to
pay all expenses of the Exchange Offer. See "The Exchange Offer--Fees and
Expenses." Each Exchange Capital Security will pay cumulative Distributions
from the most recent Distribution Date (as defined herein) on the Old
Capital Securities surrendered in exchange for such Exchange Capital
Securities or, if no Distribution Date has occurred, from November 27,
1996. Holders of the Old Capital Securities whose Old Capital Securities
are accepted for exchange will not receive accumulated Distributions on
such Old Capital Securities for any period, and will be deemed to have
waived the right to receive such Distributions. See "Risk
Factors--Consequences of a Failure to Exchange Old Capital Securities."
This Prospectus, together with the Letter of Transmittal, is being sent to
all registered holders of Old Capital Securities as of , 1997.
Neither the Corporation nor the Trust will receive any cash proceeds
from the issuance of the Exchange Capital Securities offered hereby. No
dealer-manager is being used in connection with this Exchange Offer. See
"Use of Proceeds From Sale of Old Capital Securities" and "Plan of
Distribution."
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE CORPORATION OR THE TRUST. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT
RELATES OR AN OFFER TO ANY PERSON IN ANY JURISDICTION WHERE SUCH OFFER
WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS NOT BEEN ANY CHANGE IN THE AFFAIRS OF THE CORPORATION OR THE
TRUST SINCE THE DATE HEREOF.
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TABLE OF CONTENTS
Available Information..................................................... 8
Incorporation of Certain Documents by Reference........................... 8
Summary................................................................... 10
Risk Factors.............................................................. 17
Ratios of Earnings to Fixed Charges....................................... 23
Use of Proceeds from Sale of Old Capital Securities....................... 23
Capitalization............................................................ 24
Dividend History.......................................................... 24
Republic New York Capital I.............................................. 24
Republic New York Corporation............................................. 25
The Exchange Offer........................................................ 26
Description of the Exchange Securities.................................... 36
Description of the Old Securities......................................... 61
Relationship Among the Capital Securities, the Junior Subordinated
Debt Securities and the Guarantee........................................ 61
Certain Federal Income Tax Consequences................................... 63
Plan of Distribution...................................................... 68
Validity of the Exchange Securities....................................... 69
Experts................................................................... 69
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AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
of the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549 and at the regional offices of the Commission located at 7 World
Trade Center, 13th Floor, Suite 1300, New York, New York 10048 and Suite
1400, Citicorp Center, 14th Floor, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can also be obtained at prescribed
rates by writing to the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. Such information may also be
accessed electronically by means of the Commission's home page on the
Internet (http://www.sec.gov.). In addition, such reports, proxy statements
and other information concerning the Corporation can be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005, on which exchange securities of the Corporation are listed.
No separate financial statements of the Trust have been included
herein. The Corporation and the Trust do not consider that such financial
statements would be material to holders of the Capital Securities because
the Trust is a newly formed special purpose entity, has no operating
history or independent operations and is not engaged in and does not
propose to engage in any activity other than holding as trust assets the
Junior Subordinated Debt Securities and issuing the Trust Securities. See
"Republic New York Capital I" and "Description of the Exchange Securities."
In addition, the Corporation does not expect that the Trust will file
reports under the Exchange Act with the Commission.
This Prospectus constitutes a part of a registration statement on
Form S-4 (the "Registration Statement") filed by the Corporation and the
Trust with the Commission under the Securities Act. This Prospectus does
not contain all the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and
regulations of the Commission, and reference is hereby made to the
Registration Statement and to the exhibits relating thereto for further
information with respect to the Corporation, the Trust and the Exchange
Securities. Any statements contained herein concerning the provisions of
any document are not necessarily complete, and, in each instance, reference
is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Commission are
incorporated into this Prospectus by reference:
1. The Corporation's Annual Reports on Form 10-K for the years
ended December 31, 1995 and 1996;
2. The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996; and
3. The Corporation's Current Reports on Form 8-K dated March 15, 1996
(as amended by Form 8-K/A on April 22, 1996)and January 27, 1997.
Each document or report filed by the Corporation pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof
and prior to the termination of any offering of securities made by this
Prospectus shall be deemed to be incorporated by reference into this
Prospectus and to be a part of this Prospectus from the date of filing of
such document. Any statement contained herein, or in a document all or a
portion of which is incorporated or deemed to be incorporated by reference
herein,
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shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
As used herein, the terms "Prospectus" and "herein" mean this
Prospectus, including the documents incorporated or deemed to be
incorporated herein by reference, as the same may be amended, supplemented
or otherwise modified from time to time. Statements contained in this
Prospectus as to the contents of any contract or other document referred to
herein do not purport to be complete, and where reference is made to the
particular provisions of such contract or other document, such provisions
are qualified in all respects by reference to all of the provisions of such
contract or other document. The Corporation will provide without charge to
any person to whom this Prospectus is delivered, on the written or oral
request of such person, a copy of any or all of the foregoing documents
incorporated by reference herein (other than exhibits not specifically
incorporated by reference into the texts of such documents). Requests for
such documents should be directed to:
Republic New York Corporation
452 Fifth Avenue
New York, New York 10018
Telephone (212) 525-6100
Attention: Office of the Secretary
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST TO
THE ABOVE ADDRESS. IN ORDER TO ENSURE TIMELY DELIVERY OF DOCUMENTS, ANY
REQUEST SHOULD BE MADE BY May 15, 1997.
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SUMMARY
The following summary is qualified in its entirety by, and is
subject to, the more detailed information and financial statements
contained elsewhere and incorporated by reference in this Prospectus.
REPUBLIC NEW YORK CAPITAL I
The Trust is a statutory business trust formed under Delaware law
pursuant to (i) the Declaration and (ii) the filing of a certificate of
trust with the Delaware Secretary of State on November 21, 1996. The
Trust's business and affairs are conducted by the Issuer Trustees: Bankers
Trust Company, as Property Trustee, Bankers Trust (Delaware), as Delaware
Trustee, and two individual Administrative Trustees who are employees or
officers of or affiliated with the Corporation. The Trust exists for the
exclusive purposes of (i) issuing and selling the Trust Securities and
effecting the Exchange Offer for the Exchange Capital Securities, (ii)
using the proceeds from the sale of the Old Capital Securities and the
Common Securities to acquire the Old Junior Subordinated Debt Securities,
(iii) exchanging the Old Junior Subordinated Debt Securities for the
Exchange Subordinated Debt Securities in the Exchange Offer and (iv)
engaging in only those other activities necessary, advisable or incidental
thereto. Accordingly, the Exchange Junior Subordinated Debt Securities will
be the sole assets of the Trust, and payments under the Exchange Junior
Subordinated Debt Securities and the expense provisions under the Indenture
will be the sole revenues of the Trust. All of the Common Securities are
and will be owned directly or indirectly by the Corporation.
REPUBLIC NEW YORK CORPORATION
Republic New York Corporation is a bank holding company
incorporated under the laws of Maryland in 1973 and registered with the
Federal Reserve pursuant to the United States Bank Holding Company Act of
1956, as amended. The Corporation's principal asset is the capital stock of
Republic National Bank of New York (the "Bank"). Management expects that
the Bank will remain the Corporation's principal asset and source of
revenue and net income for the foreseeable future. Based on total assets at
September 30, 1996, the Corporation was the seventeenth largest bank
holding company in the United States.
The principal executive offices of the Corporation are located at
452 Fifth Avenue, New York, New York 10018 (telephone: 212-525-6100).
Mr. Edmond J. Safra is a principal stockholder of the
Corporation, owning approximately 27.7% of the Corporation's outstanding
common stock through his ownership of all the outstanding shares of Saban
S.A., which owns directly or indirectly 15,229,036 shares of the
Corporation's common stock, and of another corporation which owns 29,776
shares of the Corporation's common stock. Mr. Safra, through Saban S.A. and
a subsidiary thereof, has approval of the Federal Reserve, through April
28, 1997, to acquire up to 1,730,400 additional shares of common stock of
the Corporation in the open market and through privately negotiated
transactions, which, if all such shares of common stock were acquired,
would result in his ownership of approximately 30.9% of the Corporation's
outstanding common stock.
The Corporation is a legal entity separate and distinct from the
Bank and its other subsidiaries and affiliates. Because the Corporation is
a holding company, its rights and the rights of its creditors and
stockholders, including the holders of the Junior Subordinated Debt
Securities and the Guarantee, to participate in the assets of any
subsidiary upon the latter's liquidation or recapitalization will be
subject to the prior claims of such subsidiary's creditors, except to the
extent that the Corporation may itself be a creditor with recognized claims
against such subsidiary, in which case it will share in such assets with
other creditors.
There are various legal limitations on the extent to which the
Corporation's bank subsidiaries may extend credit, pay dividends or
otherwise supply funds to the Corporation. The approval of the Office of
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the Comptroller of the Currency is required if total dividends declared by
a national bank in any calendar year exceed net profits for that year
combined with its retained net profits for the preceding two years. In
addition, dividends for such a bank may not be paid in excess of such
bank's undivided profits. In determining whether and to what extent to pay
dividends, each bank subsidiary must also consider the effect of dividend
payments on applicable risk-based capital and leverage ratio requirements,
as well as policy statements of the federal regulatory agencies that
indicate that banking organizations should generally pay dividends out of
current operating earnings.
The Corporation also derives dividends from its non-bank
subsidiaries. These subsidiaries are not subject to regulatory restrictions
on their payment of dividends to the Corporation. In addition, there are
numerous governmental requirements and regulations that affect the
activities of the Corporation and its bank and non-bank subsidiaries.
Under long-standing policy of the Federal Reserve, a bank holding
company is expected to act as a source of financial strength for its
subsidiary banks and to commit resources to support such banks. As a result
of that policy, the Corporation may be required to commit resources to its
subsidiary banks in circumstances where it might not otherwise do so.
THE EXCHANGE OFFER
The Exchange Offer..Up to $150,000,000 aggregate Liquidation Amount of
Exchange Capital Securities are being offered in
exchange for a like aggregate Liquidation Amount of Old
Capital Securities. Old Capital Securities may be
tendered for exchange in whole or in part in a
Liquidation Amount of $100,000 (100 Old Capital
Securities) or any integral multiple of $1,000 in
excess thereof. The Corporation and the Trust are
making the Exchange Offer in order to satisfy their
obligations under the Registration Agreement relating
to the Old Capital Securities. For a description of the
procedures for tendering Old Capital Securities, see
"The Exchange Offer-Procedures for Tendering Old
Capital Securities."
Expiration Date.....5:00 p.m., New York City time, on _____________ ,1997
unless the Exchange Offer is extended by the
Corporation and the Trust, in which case the term
"Expiration Date" shall mean the latest date and time
to which the Exchange Offer is extended. See "The
Exchange Offer--Expiration Date; Extensions;
Amendments."
Conditions to the
Exchange Offer.....The Exchange Offer is subject to certain conditions,
which may be waived by the Corporation and the Trust in
their sole discretion. The Exchange Offer is not
conditioned upon any minimum Liquidation Amount of Old
Capital Securities being tendered. See "The Exchange
Offer--Conditions to the Exchange Offer."
The Corporation and the Trust reserve the right in
their sole and absolute discretion, subject to
applicable law, at any time and from time to time, (i)
to delay the acceptance of the Old Capital Securities
for exchange, (ii) to terminate the Exchange Offer if
certain specified conditions have not been satisfied,
(iii) to extend the Expiration Date of the Exchange
Offer and
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<PAGE>
retain all Old Capital Securities tendered pursuant to
the Exchange Offer, subject, however, to the right of
holders of Old Capital Securities to withdraw their
tendered Old Capital Securities, or (iv) to waive any
condition or otherwise amend the terms of the Exchange
Offer in any respect. See "The Exchange
Offer--Expiration Date; Extensions; Amendments."
Withdrawal Rights...Tenders of Old Capital Securities may be with-drawn at
any time prior to 5:00 p.m., New York City time, on the
Expiration Date by delivering a written notice of such
withdrawal to the Exchange Agent in conformity with
certain procedures set forth below under "The Exchange
Offer--Withdrawal Rights."
Procedures for Tendering Old
Capital Securities.Tendering holders of Old Capital Securities must
complete and sign a Letter of Transmittal in accordance
with the instructions contained therein and forward the
same by mail, facsimile or hand delivery, together with
any other required documents, to the Exchange Agent,
either with the Old Capital Securities to be tendered
or in compliance with the specified procedures for
guaranteed delivery of such Old Capital Securities.
Certain brokers, dealers, commercial banks, trust
companies and other nominees may also effect tenders by
book-entry transfer. Holders of Old Capital Securities
registered in the name of a broker, dealer, commercial
bank, trust company or other nominee are urged to
contact such person promptly if they wish to tender Old
Capital Securities pursuant to the Exchange Offer. See
"The Exchange Offer--Procedures for Tendering Old
Capital Securities."
Letters of Transmittal and certificates representing
Old Capital Securities should not be sent to the
Corporation or the Trust. Such documents should only be
sent to the Exchange Agent. Questions regarding how to
tender and requests for information should be directed
to the Exchange Agent. See "The Exchange
Offer--Exchange Agent."
Resales of Exchange Capital
Securities.........Based on existing interpretations by the staff of the
Commission and subject to the two immediately following
sentences, the Corporation and the Trust believe that
the Exchange Capital Securities, the Exchange Guarantee
and, after the distribution thereof to the holders of
the Capital Securities, the Exchange Junior
Subordinated Debt Securities issued pursuant to the
Exchange Offer may be offered for resale, resold and
otherwise transferred by a holder thereof (other than a
holder who is a broker-dealer) without further
compliance with the registration and prospectus
delivery requirements of the Securities Act; provided,
that, such Exchange Capital Securities are acquired in
the ordinary course of such holder's business and such
holder is not participating, and has no arrangement or
understanding with any person to participate, in a
distribution (within the
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<PAGE>
meaning of the Securities Act) of the Exchange Capital
Securities. However, any holder of Old Capital
Securities who is an "affiliate" of the Trust or the
Corporation or who intends to participate in the
Exchange Offer for the purpose of distributing the
Exchange Capital Securities, or any broker-dealer who
purchased the Old Capital Securities from the Trust to
resell pursuant to Rule 144A or any other available
exemption under the Securities Act, (a) will not be
able to rely on the interpretations of the staff of the
Commission set forth in the above-mentioned no-action
letters, (b) will not be permitted or entitled to
tender such Old Capital Securities in the Exchange
Offer and (c) must comply with the registration and
prospectus delivery requirements of the Securities Act
in connection with any sale or other transfer of such
Old Capital Securities unless such sale is made
pursuant to an exemption from such requirements. In
addition, as described below, if any broker-dealer
holds Old Capital Securities acquired for its own
account as a result of market-making or other trading
activities and exchanges such Old Capital Securities
for Exchange Capital Securities, then such
broker-dealer must deliver a prospectus meeting the
requirements of the Securities Act in connection with
any resales of such Exchange Capital Securities.
Each holder of Old Capital Securities who wishes to
exchange Old Capital Securities for Exchange Capital
Securities in the Exchange Offer will be required to
represent that (i) it is not an "affiliate" of the
Trust or the Corporation, (ii) any Exchange Capital
Securities to be received by it are being acquired in
the ordinary course of its business and (iii) it has no
arrangement or understanding with any person to
participate in a distribution (within the meaning of
the Securities Act) of such Exchange Capital
Securities. Each broker-dealer that receives Exchange
Capital Securities for its own account pursuant to the
Exchange Offer must acknowledge that it acquired the
Old Capital Securities for its own account as the
result of market-making activities or other trading
activities and must agree that it will deliver a
prospectus meeting the requirements of the Securities
Act in connection with any resale of such Exchange
Capital Securities. The Letter of Transmittal states
that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit
that it is an "underwriter" within the meaning of the
Securities Act. Based on the position taken by the
staff of the Commission in the no-action letters
referred to above, the Corporation and the Trust
believe that broker-dealers who acquired Old Capital
Securities for their own accounts as a result of
market-making activities or other trading activities
may fulfill their prospectus delivery requirements with
respect to the Exchange Capital Securities received
upon exchange of such Old Capital Securities (other
than Old Capital Securities which represent an unsold
allotment from the original sale of the Old Capital
Securities) with the prospectus prepared for the
Exchange Offer so long as it
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<PAGE>
contains a description of the plan of distribution with
respect to the resale of such Exchange Capital
Securities. Accordingly, subject to certain provisions
set forth in the Registration Agreement and to the
limitations described below under "The Exchange
Offer--Resales of Exchange Capital Securities", the
Corporation and the Trust have agreed that this
Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in
connection with resales of such Exchange Capital
Securities for a period commencing on the Expiration
Date and ending 180 days after the Expiration Date or,
if earlier, when all such Exchange Capital Securities
have been disposed of by such broker-dealer. See "Plan
of Distribution." Any broker-dealer who is an
"affiliate" of the Corporation or the Trust may not
rely on such no-action letters and must comply with the
registration and prospectus delivery requirements of
the Securities Act in connection with any resale
transaction. See "The Exchange Offer--Resales of
Exchange Capital Securities."
Neither the Corporation nor the Trust has sought its
own interpretive letter and there can be no assurance
that the staff of the Commission would make a similar
determination with respect to the Exchange Offer as it
has in such no-action letters to third parties.
Exchange Agent.... The exchange agent with respect to the Exchange Offer
is Bankers Trust Company (the "Exchange Agent"). The
addresses, and telephone and facsimile numbers, of the
Exchange Agent are set forth in "The Exchange
Offer--Exchange Agent" and in the Letter of
Transmittal.
Use of Proceeds.....Neither the Corporation nor the
Trust will receive any cash proceeds from the issuance
of the Exchange Capital Securities offered hereby. See
"Use of Proceeds From Sale of Old Capital Securities".
Certain Federal Income Tax
Consequences....... Holders of Old Capital Securities should review the
information set forth under "Certain Federal Income Tax
Consequences" prior to tendering Old Capital Securities
in the Exchange Offer.
THE EXCHANGE CAPITAL SECURITIES
Securities Offered..Up to $150,000,000 aggregate Liquidation Amount of the
Trust's 7 3/4% Capital Trust Pass-through
Securities sm (TRUPSsm) which have been
registered under the Securities Act (Liquidation Amount
$1,000 per Capital Security). The Exchange Capital
Securities will be issued and the Old Capital
Securities were issued under the Declaration. The
Exchange Capital Securities and any Old Capital
Securities which remain outstanding after consummation
of the Exchange Offer will constitute a single series
of Capital
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<PAGE>
Securities under the Declaration and, accordingly, will
vote together as a single class for purposes of
determining whether holders of the requisite percentage
in outstanding Liquidation Amount thereof have taken
certain actions or exercised certain rights under the
Declaration. See "Description of the Exchange
Securities--Description of Capital
Securities--General." The terms of the Exchange Capital
Securities are identical in all material respects to
the terms of the Old Capital Securities, except that
the Exchange Capital Securities have been registered
under the Securities Act and therefore are not subject
to certain restrictions on transfer applicable to the
Old Capital Securities and will not provide for any
increase in the Distribution rate thereon. See "The
Exchange Offer--Purpose and Effect of the Exchange
Offer," "Description of the Exchange Securities" and
"Description of the Old Securities."
Distribution Dates..May 15 and November 15 of each year, commencing on the
first such date following the original issuance of the
Exchange Capital Securities.
Extension Periods...Distributions on the Exchange Capital Securities will
be deferred for the duration of any Extension Period
elected by the Corporation with respect to the payment
of interest on the Junior Subordinated Debt Securities.
No Extension Period will exceed 10 consecutive
semi-annual periods or extend beyond the Stated
Maturity. See "Description of the Exchange
Securities--Description of Junior Subordinated Debt
Securities--Option to Extend Interest Payment Period"
and "Certain Federal Income Tax Consequences--Interest
Income and Original Issue Discount."
Ranking............ The Exchange Capital Securities will rank pari passu,
and payments thereon will be made pro rata, with the
Old Capital Securities and the Common Securities except
as described under "Description of the Exchange
Securities--Description of Capital
Securities--Subordination of Common Securities." The
Exchange Junior Subordinated Debt Securities will rank
pari passu with the Old Junior Subordinated Debt
Securities and all other junior subordinated debt
securities issued by the Corporation pursuant to the
Indenture with substantially similar subordination
terms ("Other Debentures") and which have been or will
be issued and sold to other trusts established by the
Corporation, in each case similar to the Trust ("Other
Trusts"), and are unsecured and subordinate and junior
in right of payment to
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<PAGE>
the extent and in the manner set forth in the Indenture
to all Senior Debt of the Corporation. See "Description
of the Exchange Securities--Description of Junior
Subordinated Debt Securities." The Exchange Guarantee
will rank pari passu with all other guarantees issued
by the Corporation with respect to capital securities
issued by Other Trusts ("Other Guarantees") and will
constitute an unsecured obligation of the Corporation
and will rank subordinate and junior in right of
payment to the extent and in the manner set forth in
the Guarantee Agreement to all Senior Debt of the
Corporation. See "Description of the Exchange
Securities--Description of Guarantee."
Redemption..........The Trust Securities are subject to mandatory
redemption (i) in whole (but not in part) upon
repayment in full at the Stated Maturity of the Junior
Subordinated Debt Securities and (ii) in whole or in
part at any time on or after November 15, 2006
contemporaneously with any optional redemption by the
Corporation of the Junior Subordinated Debt Securities,
in each case at the applicable Redemption Price. See
"Description of the Exchange Securities--Description of
Capital Securities--Redemption."
Rating............. The Exchange Capital Securities are
expected to retain the "A+" issued by Standard & Poor's
Ratings Services and the "a1" rating issued by Moody's
Investors Services, Inc. in respect of the Old Capital
Securities. A security rating is not a recommendation
to buy, sell or hold securities and may be subject to
revision or withdrawal at any time by the assigning
rating organization.
Absence of Market for the
Exchange Capital
Securities....... The Exchange Capital Securities will be a new issue of
securities for which there currently is no market.
Although Salomon Brothers Inc, the initial purchaser of
the Old Capital Securities (the "Initial Purchaser"),
has informed the Corporation and the Trust that it
currently intends to make a market in the Exchange
Capital Securities, it is not obligated to do so, and
any such market making may be discontinued at any time
without notice. Accordingly, there can be no assurance
as to the development or liquidity of any market for
the Exchange Capital Securities. The Trust and the
Corporation do not presently intend to apply for
listing of the Exchange Capital Securities on the New
York Stock Exchange.
For further information regarding the Exchange Securities, see
"Description of the Exchange Securities" and "Certain Federal Income Tax
Consequences."
Holders tendering Old Capital Securities in the Exchange Offer
should carefully consider the matters set forth under "Risk Factors."
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<PAGE>
RISK FACTORS
In addition to the other information in this Prospectus, the
following factors should be considered carefully in evaluating the Exchange
Capital Securities before deciding whether to accept the Exchange Offer.
RANKING OF OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED
DEBT SECURITIES
The obligations of the Corporation pursuant to the Guarantee
and under the Junior Subordinated Debt Securities are unsecured and rank
subordinate and junior in right of payment to all Senior Debt (which, as
defined, includes all outstanding subordinated debt of the Corporation) of
the Corporation. At September 30, 1996, the aggregate outstanding Senior
Debt of the Corporation was approximately $1.1 billion. Because the
Corporation is a bank holding company, the right of the Corporation to
participate in any distribution of assets of any subsidiary, including the
Bank, upon such subsidiary's liquidation or reorganization or otherwise
(and thus the ability of holders of the Capital Securities to benefit
indirectly from such distribution), is subject to the prior claims of
creditors of such subsidiary, except to the extent that the Corporation may
itself be recognized as a creditor of such subsidiary. Accordingly, the
Junior Subordinated Debt Securities and the Guarantee will be effectively
subordinated to all existing and future liabilities of the Corporation's
subsidiaries, and holders of Junior Subordinated Debt Securities should
look only to the assets of the Corporation for payments thereon. See
"Republic New York Corporation." None of the Indenture, the Guarantee or
the Declaration places any limitation on the amount of secured or unsecured
debt, including Senior Debt, that may be incurred by the Corporation. See
"Description of the Exchange Securities--Description of Junior Subordinated
Debt Securities--Subordination" and "--Description of Guarantee--Status of
the Guarantee."
The ability of the Trust to pay amounts due on the Capital
Securities is solely dependent upon the Corporation making payments on the
Junior Subordinated Debt Securities as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES
So long as no Debenture Event of Default (as defined herein)
has occurred and is continuing, the Corporation has the right under the
Indenture to defer the payment of interest on the Junior Subordinated Debt
Securities at any time or from time to time for a period not exceeding 10
consecutive semi-annual periods with respect to each Extension Period;
provided, however, that no Extension Period may extend beyond the Stated
Maturity of the Junior Subordinated Debt Securities. As a consequence of
any such deferral, semi-annual Distributions on the Capital Securities by
the Trust will also be deferred (and the amount of Distributions to which
holders of the Capital Securities are entitled will accumulate additional
Distributions thereon at the rate of 7.75% per annum, compounded
semi-annually) from the relevant payment date for such Distributions during
any such Extension Period. During any Extension Period, the Corporation may
not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock (which includes common and preferred stock),
(ii) make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Corporation
(including Other Debentures) that rank pari passu in all respects with or
junior in interest to the Junior Subordinated Debt Securities or (iii) make
any guarantee payments with respect to any guarantee by the Corporation of
the debt securities of any subsidiary of the Corporation (including Other
Guarantees) if such guarantee ranks pari passu in all respects with or
junior in interest to the Junior Subordinated Debt Securities (other than
(a) dividends or distributions in common stock of the Corporation, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under the Guarantee, (d) purchases or acquisitions of
shares of the Corporation's common stock in connection with the
satisfaction by the Corporation of its obligations under any employee
benefit plan or any other contractual obligation of the Corporation (other
than a contractual obligation ranking pari passu with or junior to the
Junior Subordinated Debt Securities), (e) as a result of a reclassification
of the Corporation's
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capital stock or the exchange or conversion of one class or series of the
Corporation's capital stock for another class or series of the
Corporation's capital stock or (f) the purchase of fractional interests in
shares of the Corporation's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted
or exchanged). Prior to the termination of any Extension Period, the
Corporation may further extend such Extension Period; provided that such
extension does not cause such Extension Period to exceed 10 consecutive
semi-annual periods or to extend beyond the Stated Maturity. Upon the
termination of any Extension Period and the payment of all interest then
accrued and unpaid on the Junior Subordinated Debt Securities (together
with interest thereon at the annual rate of 7.75%, compounded
semi-annually, to the extent permitted by applicable law), the Corporation
may elect to begin a new Extension Period, subject to the above
requirements. There is no limitation on the number of times that the
Corporation may elect to begin an Extension Period. See "Description of the
Exchange Securities--Description of Capital Securities--Distributions" and
"--Description of Junior Subordinated Debt Securities--Option to Extend
Interest Payment Period."
Because the Corporation believes that the likelihood of its
exercising its option to defer payments of interest is remote, the Junior
Subordinated Debt Securities will be treated under Treasury regulations as
issued without "original issue discount" ("OID") for United States Federal
income tax purposes. As a result, holders of Capital Securities generally
will include their allocable share of the interest on the Junior
Subordinated Debt Securities in taxable income under their own methods of
tax accounting (i.e., cash or accrual). Under the Treasury regulations,
however, if the Corporation exercises its right to defer payments of
interest, the Junior Subordinated Debt Securities will become original
issue discount instruments and holders of Junior Subordinated Debt
Securities and, consequently, holders of Capital Securities will be
required to include their pro rata share of original issue discount (which
will include both stated interest and the de minimus OID on the Junior
Subordinated Debt Securities) in gross income as it accrues for United
States Federal income tax purposes in advance of the receipt of cash
attributable to such interest income. See "Certain United States Federal
Income Tax Consequences--Interest Income and Original Issue Discount" and
"--Sales or Redemption of Capital Securities."
Should the Corporation elect to exercise its right to defer
payments of interest on the Junior Subordinated Debt Securities in the
future, the market price of the Capital Securities is likely to be
affected. A holder that disposes of its Capital Securities during an
Extension Period, therefore, might not receive the same return on its
investment as a holder that continues to hold its Capital Securities. In
addition, as a result of the existence of the Corporation's right to defer
interest payments on the Junior Subordinated Debt Securities, the market
price of the Capital Securities (which represent beneficial ownership
interests in the Trust holding the Junior Subordinated Debt Securities as
its sole assets) may be more volatile than the market prices of other
securities on which original issue discount accrues that are not subject to
such deferrals.
TAX EVENT REDEMPTION; POSSIBLE TAX LAW CHANGES AFFECTING THE CAPITAL
SECURITIES
Upon the occurrence and continuation of a Tax Event, the
Corporation has the right to terminate the Trust and distribute a Like
Amount of the Junior Subordinated Debt Securities to the holders of the
Trust Securities in liquidation of the Trust within 90 days following the
occurrence of such Tax Event and, if a Tax Event continues notwithstanding
the taking of such actions, to redeem the Junior Subordinated Debt
Securities in whole (but not in part) at the Tax Event Prepayment Price (as
defined herein). The exercise of such right is subject to the Corporation
having received prior approval of the Federal Reserve to do so if then
required under applicable capital guidelines or policies of the Federal
Reserve. See "Description of Exchange Securities--Description of Junior
Subordinated Debt Securities--Tax Event Prepayment" and "--Description of
Capital Securities--Liquidation of the Trust and Distribution of Junior
Subordinated Debt Securities."
A "Tax Event" means the receipt by the Corporation of an opinion
of counsel experienced in such matters to the effect that, as a result of
any amendment to, or change (including any announced proposed change) in,
the laws (or any regulations thereunder) of the United States or any
political subdivision
18
<PAGE>
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or which
proposed change, pronouncement or decision is announced on or after the
date on which the Old Junior Subordinated Debt Securities were issued,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States
Federal income tax with respect to income received or accrued on the Junior
Subordinated Debt Securities, (ii) interest payable by the Corporation on
the Junior Subordinated Debt Securities is not, or within 90 days of the
date of such opinion will not be, deductible by the Corporation, in whole
or in part, for United States Federal income tax purposes, or (iii) the
Trust is, or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
On March 19, 1996, during the 104th Congress, the Revenue
Reconciliation Bill of 1996 (the "Bill") was introduced. The Bill would
have, among other things, generally denied interest deductions for interest
on an instrument issued by a corporation that has a maximum term of more
than 20 years and that is not shown as indebtedness on the separate balance
sheet of the issuer or, when the instrument is issued to a related party
(other than a corporation), when the holder or some other related party
issues a related instrument that is not shown as indebtedness on the
issuer's consolidated balance sheet. The above-described provision of the
Bill was proposed to be effective generally for instruments issued on or
after December 7, 1995. If this provision were to apply to the Junior
Subordinated Debt Securities, the Corporation would be unable to deduct
interest on the Junior Subordinated Debt Securities. However, on March 29,
1996, the Chairmen of the Senate Finance and House Ways and Means
Committees issued a joint statement (the "Joint Statement") to the effect
that it was their intention that the effective date of the Bill, if
enacted, would be no earlier than the date of appropriate Congressional
action. In addition, subsequent to the publication of the Joint Statement,
Senator Daniel Patrick Moynihan and Representatives Sam M. Gibbons and
Charles B. Rangel wrote letters to Treasury Department officials concurring
with the views expressed in the Joint Statement (the "Letters"). If the
principles contained in the Joint Statement and the Letters were followed,
any proposed legislation in this area that is subsequently enacted would
not adversely affect the ability of the Corporation to deduct interest on
the Junior Subordinated Debt Securities. The 104th Congress adjourned
without enacting the Bill. Legislation was subsequently proposed, however,
by the United States Department of the Treasury on February 6, 1997, as
part of President Clinton's Fiscal 1998 Budget Proposal (the "Proposed
Legislation"). The Proposed Legislation contained a provision (similar to
the provision of the Bill described above) which generally would deny the
interest deduction for interest paid or accrued on an instrument issued by
a corporation that (i) has a maximum term of more than 15 years and (ii) is
not shown as indebtedness on the separate balance sheet of the issuer or,
where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. This provision is proposed to be effective generally for
instruments issued on or after the date of the first Congressional
committee action on the Proposed Legislation. If this provision were to
apply to the Junior Subordinated Debt Securities, the Corporation would not
be able to deduct the interest on the Junior Subordinated Debt Securities.
As of April 21, 1997, no Congressional committee action has been taken on
the Proposed Legislation. There can be no assurance that the Proposed
Legislation or future legislative proposals or final legislation will not
affect the ability of the Corporation to deduct interest on the Junior
Subordinated Debt Securities. Such a change could give rise to a Tax Event,
which would permit the Corporation to terminate the Trust and distribute
the Junior Subordinated Debt Securities to the holders of the Trust
Securities upon liquidation of the Trust (and, if a Tax Event continued to
exist notwithstanding the taking of such actions, to prepay the Junior
Subordinated Debt Securities), as described more fully under "Description
of the Exchange Securities--Description of Capital Securities--Liquidation
of the Trust and Distribution of Junior Subordinated Debt Securities" and
"--Description of Junior Subordinated Debt Securities--Tax Event
Prepayment."
LIQUIDATION DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES
Upon liquidation of the Trust and certain other events, the Junior
Subordinated Debt Securities may be distributed to holders of the Capital
Securities. Under current United States Federal income tax
19
<PAGE>
law and interpretations thereof and assuming, as expected, that the Trust
is treated as a grantor trust for United States Federal income tax
purposes, a distribution by the Trust of the Junior Subordinated Debt
Securities pursuant to a liquidation of the Trust will not be a taxable
event to the Trust or to holders of the Capital Securities and will result
in a holder of the Capital Securities receiving directly such holder's pro
rata share of the Junior Subordinated Debt Securities (previously held
indirectly through the Trust). If, however, the liquidation of the Trust
were to occur because the Trust is subject to United States Federal income
tax with respect to income accrued or received on the Junior Subordinated
Debt Securities as a result of the occurrence of a Tax Event or otherwise,
the distribution of Junior Subordinated Debt Securities to holders of the
Capital Securities by the Trust could be a taxable event to the Trust and
each holder, and holders of the Capital Securities may be required to
recognize gain or loss as if they had exchanged their Capital Securities
for the Junior Subordinated Debt Securities they received upon the
liquidation of the Trust. See "Certain Federal Income Tax
Consequences--Distribution of Junior Subordinated Debt Securities to
Holders of Capital Securities."
MARKET PRICES
There can be no assurance as to the market prices for the Capital
Securities or the Junior Subordinated Debt Securities that may be
distributed in exchange for the Capital Securities if a liquidation of the
Trust occurs. Accordingly, the Capital Securities that an investor may
hold, or the Junior Subordinated Debt Securities that a holder of Capital
Securities may receive upon liquidation of the Trust, may trade at a
discount to the price that the investor paid to purchase the Capital
Securities. See "Description of the Exchange Securities--Description of
Capital Securities--Liquidation of the Trust and Distribution of Junior
Subordinated Debt Securities" and "--Description of Junior Subordinated
Debt Securities--General."
RIGHTS UNDER THE GUARANTEE
The Guarantee guarantees to the holders of the Trust Securities
the following payments, to the extent not paid by the Trust: (i) any
accumulated and unpaid Distributions required to be paid on the Trust
Securities, to the extent that the Trust has funds on hand available
therefor at such time, (ii) the applicable Redemption Price with respect to
any Trust Securities called for redemption, to the extent that the Trust
has funds on hand available therefor at such time, and (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the
Trust (unless the Junior Subordinated Debt Securities are distributed to
holders of the Trust Securities), the lesser of (a) the aggregate of the
Liquidation Amount and all accumulated and unpaid Distributions to the date
of payment, to the extent that the Trust has funds on hand available
therefor at such time, and (b) the amount of assets of the Trust remaining
available for distribution to holders of the Trust Securities after the
satisfaction of liabilities to creditors of the Trust as provided by
applicable law.
The holders of not less than a majority in aggregate
Liquidation Amount of the Capital Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee (as defined herein) in respect of the
Guarantee or to direct the exercise of any trust power conferred upon the
Guarantee Trustee under the Guarantee. Any holder of the Capital Securities
may institute a legal proceeding directly against the Corporation to
enforce its rights under the Guarantee without first instituting a legal
proceeding against the Trust or any other person or entity. If the
Corporation were to default on its obligation to pay amounts payable under
the Junior Subordinated Debt Securities, the Trust would lack funds for the
payment of Distributions or amounts payable on redemption of the Capital
Securities or otherwise, and, in such event, holders of the Capital
Securities would not be able to rely upon the Guarantee for payment of such
amounts. Instead, in the event a Debenture Event of Default shall have
occurred and be continuing and such event is attributable to the failure of
the Corporation to pay principal of or interest on the Junior Subordinated
Debt Securities on the applicable payment date, a holder of Capital
Securities may institute a Direct Action. Notwithstanding any payments made
to a holder of Capital Securities by the Corporation in connection with a
Direct Action, the Corporation shall remain obligated to pay the principal
of and interest on the Junior Subordinated Debt Securities, and the
Corporation shall be subrogated to the rights of the holder of such
20
<PAGE>
Capital Securities with respect to payments on the Capital Securities to
the extent of any payments made by the Corporation to such holder in any
Direct Action. Except as described herein, holders of Capital Securities
will not be able to exercise directly any other remedy available to the
holders of the Junior Subordinated Debt Securities or assert directly any
other rights in respect of the Junior Subordinated Debt Securities. See
"Description of the Exchange Securities--Description of Junior Subordinated
Debt Securities--Enforcement of Certain Rights by Holders of Trust
Securities," "--Description of Junior Subordinated Debt
Securities--Debenture Events of Default" and "--Description of Guarantee."
The Declaration provides that each holder of Trust Securities by acceptance
thereof agrees to the provisions of the Guarantee and the Indenture.
Bankers Trust Company acts as Guarantee Trustee under the Guarantee and
holds the Guarantee for the benefit of the holders of the Capital
Securities. Bankers Trust Company also acts as Property Trustee under the
Declaration and Debenture Trustee under the Indenture.
LIMITED VOTING RIGHTS
Holders of the Capital Securities will generally have limited
voting rights relating only to the modification of the Capital Securities,
the dissolution, winding-up or liquidation of the Trust, and the exercise
of the Trust's rights as holder of Junior Subordinated Debt Securities. The
right to vote to appoint, remove or replace the Property Trustee or the
Delaware Trustee is vested exclusively in the holder of the Common
Securities except upon the occurrence of certain events described herein.
The Property Trustee, the Administrative Trustees and the Corporation may
amend the Declaration without the consent of holders of the Capital
Securities to ensure that the Trust will be classified for United States
Federal income tax purposes as a grantor trust even if such action
adversely affects the interests of such holders. See "Description of the
Exchange Securities--Description of Capital Securities--Removal of Issuer
Trustees" and "--Voting Rights; Amendment of the Declaration."
CONSEQUENCES OF A FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the
Securities Act or any state securities laws and therefore may not be
offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act and any other applicable
securities laws, or pursuant to an exemption therefrom or in a transaction
not subject thereto, and in each case in compliance with certain other
conditions and restrictions. Old Capital Securities which remain
outstanding after consummation of the Exchange Offer will continue to bear
a legend reflecting such restrictions on transfer. In addition, upon
consummation of the Exchange Offer, holders of Old Capital Securities which
remain outstanding will not be entitled to any rights to have such Old
Capital Securities registered under the Securities Act or to any similar
rights under the Registration Agreement (subject to certain limited
exceptions). The Corporation and the Trust do not intend to register under
the Securities Act any Old Capital Securities which remain outstanding
after consummation of the Exchange Offer (subject to such limited
exceptions, if applicable).
The Registration Agreement provides, under certain circumstances,
for additional interest to become payable in respect of the Old Junior
Subordinated Debt Securities as liquidated damages, and for corresponding
additional Distributions to become payable in respect of the Old Capital
Securities. Following consummation of the Exchange Offer, the Old Capital
Securities will not be entitled to any increase in the Distribution rate
thereon.
To the extent that Old Capital Securities are tendered and
accepted in the Exchange Offer, a holder's ability to sell untendered Old
Capital Securities could be adversely affected. In addition, any trading
market for Old Capital Securities which remain outstanding after the
Exchange Offer could be adversely affected.
The Exchange Capital Securities and any Old Capital Securities
which remain outstanding after consummation of the Exchange Offer will
constitute a single series of Capital Securities under the Declaration and,
accordingly, will vote together as a single class for purposes of
determining whether
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<PAGE>
holders of the requisite percentage in outstanding Liquidation Amount
thereof have taken certain actions or exercised certain rights under the
Declaration. See "Description of the Exchange Securities--Description of
Capital Securities--General."
ABSENCE OF PUBLIC MARKET
The Old Capital Securities were issued to, and the Corporation
believes are currently owned by, a relatively small number of beneficial
owners. The Old Capital Securities have not been registered under the
Securities Act and will be subject to restrictions on transferability to
the extent that they are not exchanged for the Exchange Capital Securities.
Although the Exchange Capital Securities will generally be permitted to be
resold or otherwise transferred by the holders thereof without compliance
with the registration requirements under the Securities Act, they will
constitute a new issue of securities with no established trading market.
Capital Securities may be transferred by the holders thereof only in blocks
having a Liquidation Amount of not less than $100,000 (100 Capital
Securities). The Corporation and the Trust have been advised by the Initial
Purchaser that the Initial Purchaser presently intends to make a market in
the Exchange Capital Securities and the Old Capital Securities. However,
the Initial Purchaser is not obligated to do so and any market-making
activity with respect to the Exchange Capital Securities or the Old Capital
Securities may be discontinued at any time without notice. In addition,
such market-making activity will be subject to the limits imposed by the
Securities Act and the Exchange Act. Accordingly, no assurance can be given
that an active public or other market will develop for the Exchange Capital
Securities or the Old Capital Securities or as to the liquidity of or the
trading market for the Exchange Capital Securities or the Old Capital
Securities. If an active public market does not exist for the Exchange
Capital Securities or the Old Capital Securities, as the case may be, the
market price and liquidity of such Capital Securities may be adversely
affected.
Future trading prices of the Capital Securities will depend on
many factors, including, among other things, prevailing interest rates,
results of operations of the Corporation and the market for similar
securities. Under certain circumstances, the Capital Securities may trade
at a discount.
Notwithstanding the registration of the Exchange Capital
Securities in the Exchange Offer, holders who are "affiliates" (as defined
under Rule 405 of the Securities Act) of the Corporation or the Trust may
publicly offer for sale or resell the Exchange Securities only in
compliance with the provisions of Rule 144 under the Securities Act.
Each broker-dealer that receives Exchange Capital Securities for
its own account in exchange for Old Capital Securities, where such Old
Capital Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that
it will deliver a prospectus in connection with any resale of such Exchange
Capital Securities. See "Plan of Distribution."
EXCHANGE OFFER PROCEDURES
Issuance of Exchange Capital Securities in exchange for Old
Capital Securities pursuant to the Exchange Offer will be made only after
timely receipt by the Trust of such Old Capital Securities, a properly
completed and duly executed Letter of Transmittal and all other required
documents. Therefore, holders of Old Capital Securities desiring to tender
such Old Capital Securities in exchange for Exchange Capital Securities
should allow sufficient time to ensure timely delivery. The Trust is under
no duty to give notification of defects or irregularities with respect to
the tenders of Old Capital Securities for exchange.
22
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed
charges of the Corporation for the respective periods indicated.
Consolidated Ratios of Earnings to Fixed Charges
Years Ended December 31,
-----------------------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
Excluding Interest on Deposits 1.66 1.94 1.96 1.79 1.98
Including Interest on Deposits 1.26 1.39 1.37 1.24 1.31
For the purpose of computing the consolidated ratios of earnings
to fixed charges, earnings represent consolidated income before income
taxes plus fixed charges. Fixed charges excluding interest on deposits
consist of interest on long-term debt and short-term borrowings and
one-third of rental expense (which is deemed representative of the interest
factor). Fixed charges including interest on deposits consist of the
foregoing items plus interest on deposits.
USE OF PROCEEDS FROM SALE OF OLD CAPITAL SECURITIES
Neither the Corporation nor the Trust will receive any cash
proceeds from the issuance of the Exchange Capital Securities offered
hereby. In consideration for issuing the Exchange Capital Securities in
exchange for Old Capital Securities as described in this Prospectus, the
Trust will receive Old Capital Securities in like Liquidation Amount. The
Old Capital Securities surrendered in exchange for the Exchange Capital
Securities will be retired and canceled.
The net proceeds to the Trust from the offering of the Old Capital
Securities was approximately $149,365,500 (before deducting expenses
associated with the offering). All of the proceeds from the sale of the Old
Capital Securities were invested by the Trust in the Old Junior
Subordinated Debt Securities. The Corporation has applied the net proceeds
from the sale of the Old Junior Subordinated Debt Securities to its general
funds to be used by its management for general corporate purposes,
including, from time to time, the redemption or the purchase, in the open
market or in privately negotiated transactions, of outstanding indebtedness
or preferred stock of the Corporation and the making of advances to its
subsidiaries, principally the Bank. Pending such application, the net
proceeds may be used to make short-term investments or reduce short-term
borrowings.
Management anticipates that the Corporation may, from time to
time, engage in additional equity or debt financings.
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<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Corporation and its subsidiaries as of December 31, 1996 and as adjusted to
give effect to certain transactions to be effective subsequent to such
date. The following data should be read in conjunction with the
consolidated financial statements and notes thereto of the Corporation and
its subsidiaries incorporated herein by reference. See "Incorporation of
Certain Documents by Reference."
<TABLE>
<CAPTION>
December 31, 1996
-----------------
Actual As Adjusted
-------------------------
(in millions)
(unaudited)
<S> <C> <C>
Deposits $31,726 $31,726
Short-term borrowings 5,447 5,447
Total long-term debt 3,899 3,899
------ ------
Total debt 41,072 41,072
Company-obligated manditorily redeemable preferred securities
of subsidiary trusts(1)<F1> 350 350
Stockholders' equity:
Preferred stock(2)<F2> 556 400
Common stock--$5.00 par value--150,000,000 shares authorized,
55,009,549 shares outstanding 275 275
Surplus 502 502
Retained earnings 1,919 1,919
Net unrealized appreciation on securities available for sale,
net of taxes 55 55
------ ------
Total stockholders' equity 3,307 3,151
------ ------
TOTAL CAPITALIZATION $44,729 $44,573
====== ======
<FN>
<F1> (1) The company-obligated manditorily redeemable preferred securities
of subsidiary trusts consist of the Old Capital Securities and
capital securities issued by a subsidiary trust other than the
Trust. The Trust is a wholly-owned subsidiary of the Corporation
and holds the Junior Subordinated Debt Securities as its sole
assets; the other subsidiary trust which issued company-obligated
manditorily redeemable capital securities is also a wholly-owned
subsidiary of the Corporation and also holds junior subordinated
debt securities as its sole assets.
<F2> (2) The Corporation intends to redeem preferred stock outstanding in
an aggregate amount of $155.8 million during the first quarter of 1997.
</FN>
</TABLE>
DIVIDEND HISTORY
The Corporation has paid a regular quarterly dividend on its
Common Stock since such payment began in 1975.
REPUBLIC NEW YORK CAPITAL I
The Trust is a statutory business trust formed under Delaware
law pursuant to (i) the original declaration of trust executed by the
Corporation, as Depositor, Bankers Trust (Delaware), as Delaware Trustee,
and the administrative trustees named therein, which original declaration
of trust was amended and restated and executed by the Corporation, as
Depositor, Bankers Trust Company, as Property Trustee, Bankers Trust
(Delaware), as Delaware Trustee, and the Administrative Trustees named
therein on November 27, 1996 (the "Declaration"), and (ii) the filing of a
certificate of trust with the Delaware Secretary of State on November 21,
1996. The Trust exists for the exclusive purposes of (i) issuing and
selling the Trust Securities and effecting the Exchange Offer for the
Exchange Capital Securities, (ii) using the proceeds from the sale of the
Trust Securities to acquire the Old Junior Subordinated Debt Securities,
(iii) exchanging the Old Junior Subordinated Debt Securities for Exchange
Junior Subordinated Debt Securities in the Exchange Offer and (iv) engaging
in only those other activities necessary, advisable or
24
<PAGE>
incidental thereto. Holders of the Trust Securities have no preemptive or
similar rights. The Trust may not borrow money or issue debt or mortgage or
pledge any of its assets. Accordingly, the Junior Subordinated Debt
Securities will be the sole assets of the Trust, and payments under the
Junior Subordinated Debt Securities and the expense provisions under the
Indenture will be the sole revenues of the Trust. All of the Common
Securities are and will be owned directly or indirectly by the Corporation.
The Common Securities will rank pari passu, and payments will be made
thereon pro rata, with the Capital Securities, except that upon the
occurrence and continuance of an Event of Default (as defined herein) under
the Declaration resulting from a Debenture Event of Default, the rights of
the Corporation as holder of the Common Securities to payment in respect of
Distributions and payments on account of the liquidation of the Trust or
the redemption or other acquisition of the Common Securities will be
subordinated to the rights of the holders of the Capital Securities. See
"Description of the Exchange Securities--Description of Capital
Securities--Subordination of Common Securities." The Corporation acquired
the Common Securities in an aggregate Liquidation Amount equal to 3% of the
total capital of the Trust. The Trust has a term of 54 years, but may
terminate earlier as provided in the Declaration. The Trust's business and
affairs are conducted by its trustees, each appointed by the Corporation as
holder of the Common Securities. The trustees for the Trust are Bankers
Trust Company, as the Property Trustee, Bankers Trust (Delaware), as the
Delaware Trustee, and two individual trustees as Administrative Trustees
who are employees or officers of or affiliated with the Corporation
(collectively, the "Issuer Trustees"). Bankers Trust Company, as Property
Trustee, will act as sole indenture trustee under the Declaration. Bankers
Trust Company also acts as trustee under the Guarantee Agreement and the
Indenture. See "Description of the Exchange Securities--Description of
Junior Subordinated Debt Securities" and "--Description of Guarantee." The
holder of the Common Securities of the Trust, or the holders of a majority
in Liquidation Amount of the Capital Securities if an Event of Default
under the Declaration resulting from a Debenture Event of Default has
occurred and is continuing, will be entitled to appoint, remove or replace
the Property Trustee and/or the Delaware Trustee. In no event will the
holders of the Capital Securities have the right to vote to appoint, remove
or replace the Administrative Trustees; such voting rights are vested
exclusively in the holder of the Common Securities. The duties and
obligations of each Issuer Trustee are governed by the Declaration.
Pursuant to the expense provisions under the Indenture, the Corporation
will pay all fees and expenses related to the Exchange Offer and will pay,
directly or indirectly, all ongoing costs, expenses and liabilities of the
Trust. See "Description of the Exchange Securities--Description of Capital
Securities--Expenses and Taxes." The principal executive office of the
Trust is care of:
Republic New York Corporation
452 Fifth Avenue
New York, New York 10018
Telephone: (212) 525-6100
Attention: Office of the Secretary
REPUBLIC NEW YORK CORPORATION
Republic New York Corporation is a bank holding company
incorporated under the laws of Maryland in 1973 and registered with the
Federal Reserve pursuant to the United States Bank Holding Company Act of
1956, as amended. The Corporation's principal asset is the capital stock of
the Bank. Management expects that the Bank will remain the Corporation's
principal asset and source of revenue and net income in the foreseeable
future. Based on total assets at September 30, 1996, the Corporation was
the seventeenth largest bank holding company in the United States.
The principal executive offices of the Corporation are located at
452 Fifth Avenue, New York, New York 10018 (telephone: 212-525-6100).
Mr. Edmond J. Safra is a principal stockholder of the
Corporation, owning approximately 27.7% of the Corporation's outstanding
common stock through his ownership of all the outstanding shares of
25
<PAGE>
Saban S.A., which owns directly or indirectly 15,229,036 shares of the
Corporation's common stock, and of another corporation which owns 29,776
shares of the Corporation's common stock. Mr. Safra, through Saban S.A. and
a subsidiary thereof, has approval of the Federal Reserve, through April
28, 1997, to acquire up to 1,730,400 additional shares of common stock of
the Corporation in the open market and through privately negotiated
transactions, which, if all such shares of common stock were acquired,
would result in his ownership of approximately 30.9% of the Corporation's
outstanding common stock.
The Corporation is a legal entity separate and distinct from the
Bank and its other subsidiaries and affiliates. Because the Corporation is
a holding company, its rights and the rights of its creditors and
stockholders, including the holders of the Junior Subordinated Debt
Securities and the Guarantee, to participate in the assets of any
subsidiary upon the latter's liquidation or recapitalization will be
subject to the prior claims of such subsidiary's creditors, except to the
extent that the Corporation may itself be a creditor with recognized claims
against such subsidiary, in which case it will share in such assets with
other creditors.
There are various legal limitations on the extent to which the
Corporation's bank subsidiaries may extend credit, pay dividends or
otherwise supply funds to the Corporation. The approval of the Office of
26
<PAGE>
the Comptroller of the Currency is required if total dividends declared by
a national bank in any calendar year exceed net profits for that year
combined with its retained net profits for the preceding two years. In
addition, dividends for such a bank may not be paid in excess of such
bank's undivided profits. In determining whether and to what extent to pay
dividends, each bank subsidiary must also consider the effect of dividend
payments on applicable risk-based capital and leverage ratio requirements,
as well as policy statements of the federal regulatory agencies that
indicate that banking organizations should generally pay dividends out of
current operating earnings.
The Corporation also derives dividends from its non-bank
subsidiaries. These subsidiaries are not subject to regulatory restrictions
on their payment of dividends to the Corporation. In addition, there are
numerous governmental requirements and regulations that affect the
activities of the Corporation and its bank and non-bank subsidiaries.
Under long-standing policy of the Federal Reserve, a bank holding
company is expected to act as a source of financial strength for its
subsidiary banks and to commit resources to support such banks. As a result
of that policy, the Corporation may be required to commit resources to its
subsidiary banks in circumstances where it might not otherwise do so.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, the
Corporation and the Trust entered into the Registration Agreement with the
Initial Purchaser, pursuant to which the Corporation and the Trust agreed,
among other things, to file and to use their reasonable efforts to cause to
become effective with the Commission a registration statement with respect
to the exchange of the Old Capital Securities for capital securities with
terms identical in all material respects to the terms of the Old Capital
Securities. A copy of the Registration Agreement has been filed as an
Exhibit to the Registration Statement of which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual
obligations of the Corporation and the Trust under the Registration
Agreement. The form and terms of the Exchange Capital Securities are the
same as the form and terms of the Old Capital Securities except that the
Exchange Capital Securities have been registered under the Securities Act
and therefore will not be subject to certain restrictions on transfer
applicable to the Old Capital Securities and will not provide for any
increase in the Distribution rate thereon. In that regard, the Old Capital
Securities provide, among other things, that, if the Exchange Offer is not
consummated within a specified period after the date the Old Capital
Securities were issued, the Distribution rate borne by the Old Capital
Securities will increase by 0.25% per annum until the Exchange Offer is
consummated. Upon consummation of the Exchange Offer, holders of Old
Capital Securities will not be entitled to any increase in the Distribution
rate thereon or any further registration rights under the Registration
Agreement, except under limited circumstances. See "Risk
Factors--Consequences of a Failure to Exchange Old Capital Securities" and
"Description of the Old Securities."
The Exchange Offer is not being made to, nor will the Corporation
or the Trust accept tenders for exchange from, holders of Old Capital
Securities in any jurisdiction in which the Exchange Offer or the
acceptance thereof would not be in compliance with the securities or blue
sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with
respect to the Exchange Offer means any person in whose name the Old
Capital Securities are registered on the books of the Trust or any other
person who has obtained a properly completed bond power from the registered
holder, or any person whose Old Capital Securities are held of record by
The Depository Trust Company ("DTC") who desires to deliver such Old
Capital Securities by book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Corporation will exchange, as
soon as practicable after the date hereof, the Old Guarantee for the
Exchange Guarantee and all of the Old Junior Subordinated Debt Securities,
of which $154,640,000 aggregate principal amount is outstanding, for a like
aggregate principal amount of the Exchange Junior Subordinated Debt
Securities. The Exchange Guarantee and the Exchange Junior Subordinated
Debt Securities have been registered under the Securities Act.
TERMS OF THE EXCHANGE
The Corporation and the Trust hereby offer, upon the terms and
subject to the conditions set forth in this Prospectus and in the
accompanying Letter of Transmittal, to exchange up to $150,000,000
aggregate Liquidation Amount of Exchange Capital Securities for a like
aggregate Liquidation Amount of Old Capital Securities properly tendered
prior to 5:00 p.m., New York City time, on the Expiration Date and not
properly withdrawn in accordance with the procedures described below. The
Trust will issue, promptly after the Expiration Date, an aggregate
Liquidation Amount of up to $150,000,000 of Exchange Capital Securities in
exchange for a like Liquidation Amount of outstanding Old Capital
Securities tendered and accepted in connection with the Exchange Offer.
Holders may tender their Old Capital Securities in whole or in part in a
Liquidation Amount of not less than $100,000 or any integral multiple of
$1,000 in excess thereof.
The Exchange Offer is not conditioned upon any minimum Liquidation
Amount of Old Capital Securities being tendered. As of the date of this
Prospectus, $150,000,000 aggregate Liquidation Amount of the Old Capital
Securities is outstanding.
Holders of Old Capital Securities do not have any appraisal or
dissenters' rights in connection with the Exchange Offer. Old Capital
Securities which are not tendered or are tendered but not accepted in
connection with the Exchange Offer will remain outstanding and be entitled
to the benefits of the Declaration, but will not be entitled to any
increase in the Distribution rate thereon or any further registration
rights under the Registration Agreement, except under limited
circumstances. See "Risk Factors--Consequences of a Failure to Exchange Old
Capital Securities" and "Description of the Old Securities".
If any tendered Old Capital Securities are not accepted for
exchange because of an invalid tender, the occurrence of certain other
events set forth herein or otherwise, certificates for any such unaccepted
Old Capital Securities will be returned, without expense, to the tendering
holder thereof promptly after the Expiration Date.
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Holders who tender Old Capital Securities in connection with the
Exchange Offer will not be required to pay brokerage commissions or fees
or, subject to the instructions in the Letter of Transmittal, transfer
taxes with respect to the exchange of Old Capital Securities in connection
with the Exchange Offer. The Corporation will pay all charges and expenses,
other than certain applicable taxes described below, in connection with the
Exchange Offer. See "--Fees and Expenses".
NEITHER THE BOARD OF DIRECTORS OF THE CORPORATION NOR THE TRUSTEES OF THE
TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL SECURITIES AS TO
WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD
CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS
BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL
SECURITIES MUST MAKE THEIR OWN DECISION BASED ON THEIR OWN FINANCIAL
POSITION AND REQUIREMENTS WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER
AND, IF SO, THE AGGREGATE LIQUIDATION AMOUNT OF OLD CAPITAL SECURITIES TO
TENDER AFTER READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND
CONSULTING WITH THEIR ADVISERS, IF ANY.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on
__________, 1997 unless the Exchange Offer is extended by the Corporation
and the Trust (in which case the term "Expiration Date" shall mean the
latest date and time to which the Exchange Offer is extended).
The Corporation and the Trust expressly reserve the right in their
sole and absolute discretion, subject to applicable law, at any time and
from time to time, (i) to delay the acceptance of the Old Capital
Securities for exchange, (ii) to terminate the Exchange Offer (whether or
not any Old Capital Securities have theretofore been accepted for exchange)
if the Corporation and the Trust determine, in their sole and absolute
discretion, that any of the events or conditions referred to under
"--Conditions to the Exchange Offer" have occurred or exist or have not
been satisfied, (iii) to extend the Expiration Date of the Exchange Offer
and retain all Old Capital Securities tendered pursuant to the Exchange
Offer, subject, however, to the right of holders of Old Capital Securities
to withdraw their tendered Old Capital Securities as described under
"--Withdrawal Rights," and (iv) to waive any condition or otherwise amend
the terms of the Exchange Offer in any respect. If the Exchange Offer is
amended in a manner determined by the Corporation and the Trust to
constitute a material change, or if the Corporation and the Trust waive a
material condition of the Exchange Offer, the Corporation or the Trust will
promptly disclose such amendment or waiver by means of a prospectus
supplement that will be distributed to the registered holders of the Old
Capital Securities, and the Corporation and the Trust will extend the
Exchange Offer to the extent required by applicable law.
Any such delay in acceptance, extension, termination or amendment
will be followed promptly by oral or written notice thereof to the Exchange
Agent and by making a public announcement thereof, and such announcement in
the case of an extension will be made no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled
Expiration Date. Without limiting the manner in which the Corporation or
the Trust may choose to make any public announcement and subject to
applicable law, neither the Corporation nor the Trust shall have any
obligation to publish, advertise or otherwise communicate any such public
announcement other than by issuing a release to an appropriate news agency.
PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
Valid Tender. Except as set forth below, in order for Old
Capital Securities to be validly tendered pursuant to the Exchange Offer, a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof), with any required signature guarantees and any other required
documents, must be received by the Exchange Agent at one of its address set
forth under "--Exchange Agent". In addition, either (i) certificates for
such Old Capital Securities must be received by the Exchange Agent or (ii)
a timely confirmation of a book-entry transfer ("Book-Entry Confirmation")
of such Old Capital Securities,
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if that procedure is available, into the Exchange Agent's account at DTC
pursuant to the procedure for book-entry transfer described below, must be
received by the Exchange Agent, in each case prior to 5:00 p.m., New York
City time, on the Expiration Date or (iii) the holder must comply with the
guaranteed delivery procedures set forth below.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE
TIMELY DELIVERY.
The tender by a holder of Old Capital Securities that is not
withdrawn before 5:00 p.m., New York City time, on the Expiration Date will
constitute an agreement between such holder and the Corporation and the
Trust in accordance with the terms and subject to the conditions set forth
herein and in the Letter of Transmittal.
Any beneficial owner whose Old Capital Securities are
registered in the name of a broker, dealer, commercial bank, trust company,
or other nominee and who wishes to tender should contact the registered
holder promptly and instruct such registered holder to tender on the
beneficial owner's behalf. If the beneficial owner wishes to tender on his
own behalf, the owner must, prior to completing and executing the Letter of
Transmittal and delivering Old Capital Securities certificates, either make
appropriate arrangements to register ownership of the Old Capital
Securities in such beneficial owner's name or obtain a properly completed
bond power from the registered holder. The transfer of registered ownership
may take considerable time.
If less than all of the Old Capital Securities held by a holder
are tendered, such tendering holder should fill in the amount of Old
Capital Securities being tendered in the appropriate box on the Letter of
Transmittal. The entire amount of Old Capital Securities delivered to the
Exchange Agent will be deemed to have been tendered unless otherwise
indicated.
Signatures. Certificates for the Old Capital Securities need not
be endorsed and signature guarantees on the Letter of Transmittal, or a
notice of withdrawal, as the case may be, are unnecessary unless (a) a
certificate for the Old Capital Securities is registered in a name other
than that of the person surrendering the certificate or (b) such registered
holder completes the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" in the Letter of Transmittal. In the case
of (a) or (b) above, such certificates for Old Capital Securities must be
duly endorsed or accompanied by a properly executed bond power, with the
endorsement or signature on the bond power and on the Letter of Transmittal
guaranteed by a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as an "eligible guarantor institution," including (as such
terms are defined therein): (i) a bank; (ii) a broker, dealer, municipal
securities broker or dealer or government securities broker or dealer;
(iii) a credit union; (iv) a national securities exchange, registered
securities association or clearing agency; or (v) a savings association
that is a participant in a Securities Transfer Association (each, an
"Eligible Institution"), unless surrendered on behalf of such Eligible
Institution. See Instruction 1 to the Letter of Transmittal.
If any Letter of Transmittal, endorsement, bond power, power of
attorney, or any other document required by the Letter of Transmittal is
signed by a trustee, attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, such person should
so indicate when signing, and unless waived by the Corporation or the
Trust, proper evidence satisfactory to the Corporation or the Trust, in its
sole discretion, of such person's authority to so act must be
submitted.
Determination of Validity. All questions as to the form of
documents, validity, eligibility (including time of receipt) and acceptance
for exchange of any tendered Old Capital Securities will be determined by
the Corporation and the Trust, in their sole discretion, whose
determination shall be final and binding on all parties. The Corporation
and the Trust reserve the absolute right, in their sole and
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absolute discretion, to reject any and all tenders determined by them not
to be in proper form or the acceptance of which, or exchange for, may, in
the view of counsel to the Corporation and the Trust, be unlawful. The
Corporation and the Trust also reserve the absolute right, subject to
applicable law, to waive any of the conditions of the Exchange Offer as set
forth under "--Conditions to the Exchange Offer" or any condition or
irregularity in any tender of Old Capital Securities of any particular
holder, whether or not similar conditions or irregularities are waived in
the case of other holders.
The Corporation's and the Trust's interpretation of the terms and
conditions of the Exchange Offer (including the Letter of Transmittal and
the instructions thereto) will be final and binding. No tender of Old
Capital Securities will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived.
Neither the Corporation, the Trust, any affiliates or assigns of the
Corporation, the Exchange Agent nor any other person shall be under any
duty to give any notification of any irregularities in tenders or incur any
liability for failure to give any such notification.
Acceptance of Old Capital Securities for Exchange; Delivery of
Exchange Capital Securities. Upon the terms and subject to the conditions
of the Exchange Offer, the Corporation and the Trust will exchange, and
will issue to the Exchange Agent, Exchange Capital Securities for Old
Capital Securities validly tendered and not withdrawn (pursuant to the
withdrawal rights described under "--Withdrawal of Tenders") promptly after
the Expiration Date.
In all cases, delivery of Exchange Capital Securities in exchange
for Old Capital Securities tendered and accepted for exchange pursuant to
the Exchange Offer will be made only after timely receipt by the Exchange
Agent of (i) Old Capital Securities or a Book-Entry Confirmation (as
defined below), (ii) the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature
guarantees, and (iii) any other documents required by the Letter of
Transmittal.
Subject to the terms and conditions of the Exchange Offer, the
Corporation and the Trust will be deemed to have accepted for exchange, and
thereby exchanged, Old Capital Securities validly tendered and not
withdrawn as, if and when the Corporation or the Trust gives oral or
written notice to the Exchange Agent of the Corporation's and the Trust's
acceptance of such Old Capital Securities for exchange pursuant to the
Exchange Offer. The Exchange Agent will act as agent for the Corporation
and the Trust for the purpose of receiving tenders of Old Capital
Securities, Letters of Transmittal and related documents, and as agent for
tendering holders for the purpose of receiving Old Capital Securities,
Letters of Transmittal and related documents and transmitting Exchange
Capital Securities to validly tendering holders. Such exchange will be made
promptly after the Expiration Date. If, for any reason whatsoever,
acceptance for exchange or the exchange of any Old Capital Securities
tendered pursuant to the Exchange Offer is delayed (whether before or after
the Corporation's and the Trust's acceptance for exchange of Old Capital
Securities) or the Corporation or the Trust extends the Exchange Offer or
is unable to accept for exchange or exchange Old Capital Securities
tendered pursuant to the Exchange Offer, then, without prejudice to the
Corporation or the Trust's rights set forth herein, the Exchange Agent may,
nevertheless, on behalf of the Corporation and the Trust (and subject to
applicable law), retain tendered Old Capital Securities and such Old
Capital Securities may not be withdrawn except to the extent tendering
holders are entitled to withdrawal rights as described under "--Withdrawal
of Tenders."
Pursuant to the Letter of Transmittal, a holder of Old Capital
Securities will warrant and agree in the Letter of Transmittal that it has
full power and authority to tender, exchange, sell, assign and transfer Old
Capital Securities, that the Trust will acquire good, marketable and
unencumbered title to the tendered Old Capital Securities, free and clear
of all liens, restrictions, charges and encumbrances, and that the Old
Capital Securities tendered for exchange are not subject to any adverse
claims or proxies. The holder also will warrant and agree that it will,
upon request, execute and deliver any additional documents deemed by the
Corporation, the Trust or the Exchange Agent to be necessary or desirable
to complete the exchange, sale, assignment and transfer of the Old Capital
Securities tendered pursuant to the Exchange Offer.
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Notwithstanding any other provision hereof, the delivery of
Exchange Capital Securities in exchange for Old Capital Securities tendered
and accepted for exchange pursuant to the Exchange Offer will in all cases
be made only after timely receipt by the Exchange Agent of Old Capital
Securities and a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), together with any required signature guarantees and
any other documents required by the Letter of Transmittal, or of a
Book-Entry Confirmation with respect to such Old Capital Securities.
Accordingly, the delivery of Exchange Capital Securities might not be made
to all tendering holders at the same time, and will depend upon when Old
Capital Securities, Book-Entry Confirmations with respect to Old Capital
Securities and other required documents are received by the Exchange Agent.
Book-Entry Transfer. The Exchange Agent will make a request to
establish an account with respect to the Old Capital Securities at DTC for
purposes of the Exchange Offer within two business days after the date of
this Prospectus. Any financial institution that is a participant in DTC's
book-entry transfer facility system may make a book-entry delivery of the
Old Capital Securities by causing DTC to transfer such Old Capital
Securities into the Exchange Agent's account at DTC in accordance with
DTC's procedures for transfers. However, although delivery of Old Capital
Securities may be effected through book-entry transfer into the Exchange
Agent's account at DTC, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature
guarantees and any other required documents, must, in any case other than
as set forth in the following paragraph, be transmitted to and received by
the Exchange Agent at its address set forth under "--Exchange Agent" prior
to 5:00 p.m., New York City time, on the Expiration Date, or the guaranteed
delivery procedure set forth below must be complied with in order for such
Old Capital Securities to be properly tendered.
DTC's Automated Tender Offer Program ("ATOP") is the only method
of processing exchange offers through DTC. To accept the Exchange Offer
through ATOP, participants in DTC must send electronic instructions to DTC
through DTC's communication system in place for sending signed, hard copy
of the Letter of Transmittal. DTC is obligated to communicate those
electronic instructions to the Exchange Agent. To tender Old Capital
Securities through ATOP, the electronic instructions sent to DTC and
transmitted by DTC to the Exchange Agent must contain the character by
which the participant acknowledges its receipt of and agrees to be bound by
the Letter of Transmittal.
Guaranteed Delivery. If a holder desires to tender Old Capital
Securities pursuant to the Exchange Offer and the certificates for such Old
Capital Securities are not immediately available or time will not permit
all required documents to reach the Exchange Agent before 5:00 p.m., New
York City time, on the Expiration Date, or the procedures for book-entry
transfer cannot be completed on a timely basis, such Old Capital Securities
may nevertheless be tendered, provided that all of the following guaranteed
delivery procedures are complied with:
(i) such tenders are made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form accompanying the Letter of Transmittal,
is received by the Exchange Agent prior to 5:00 p.m., New York City time,
on the Expiration Date; and
(iii) the certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof), with any required signature guarantees and any other documents
required by the Letter of Transmittal, are received by the Exchange Agent
within five New York Stock Exchange trading days after the date of
execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or
transmitted by facsimile or mail, to the Exchange Agent and must include a
guarantee by an Eligible Institution in the form set forth in such notice.
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Withdrawal of Tenders. Tenders of Old Capital Securities may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date.
For withdrawal to be effective, a written electronic ATOP
transmission notice of withdrawal (for DTC participants) must be received
by the Exchange Agent at one of its address set forth herein prior to 5:00
p.m., New York City time, on the Expiration Date. Any such notice of
withdrawal must (i) specify the name of the person having tendered the Old
Capital Securities to be withdrawn, (ii) identify the Old Capital
Securities to be withdrawn (including the certificate number or numbers and
Liquidation Amount of such Old Capital Securities) and (iii) where physical
certificates for Old Capital Securities have been transmitted, specify the
name in which any such Old Capital Securities are registered, if different
from that of the withdrawing holder. If physical certificates for Old
Capital Securities have been delivered or otherwise identified to the
Exchange Agent, then, prior to the release of such certificates, the
withdrawing holder must also submit the serial numbers of the particular
certificates to be withdrawn and a signed notice of withdrawal with
signatures guaranteed, as necessary. If Old Capital Securities have been
tendered pursuant to the procedure for book-entry transfer described above,
any notice of withdrawal must specify the name and number of the account at
DTC to be credited with the withdrawn Old Capital Securities and otherwise
comply with DTC's procedures. All questions as to validity, form, and
eligibility (including time of receipt) of such notices will be determined
by the Corporation or the Trust, whose determination shall be final and
binding on all parties. Any Old Capital Securities so withdrawn will be
deemed not to have been validly tendered for exchange for purposes of the
Exchange Offer. Any Old Capital Securities which have been tendered for
exchange but which are not exchanged for any reason will be returned to the
holder thereof without cost to such holder (or, in the case of Old Capital
Securities tendered by book-entry transfer into the Exchange Agent's
account at DTC pursuant to the book-entry transfer procedures described
above, such Old Capital Securities will be credited to an account
maintained with DTC for the Old Capital Securities) as soon as practicable
after withdrawal, rejection of tender, or termination of the Exchange
Offer. Properly withdrawn Old Capital Securities may be retendered by
following one of the procedures described above at an time prior to 5:00
p.m., New York City time, on the Expiration Date.
RESALES OF EXCHANGE CAPITAL SECURITIES
Based on existing interpretations by the staff of the
Commission and subject to the two immediately following sentences, the
Corporation and the Trust believe that the Exchange Capital Securities, the
Exchange Guarantee and, after distribution thereof to the holders of
Capital Securities, the Exchange Junior Subordinated Debt Securities issued
pursuant to this Exchange Offer may be offered for resale, resold and
otherwise transferred by a holder thereof (other than a holder who is a
broker-dealer) without further compliance with the registration and
prospectus delivery requirements of the Securities Act; provided, that,
such Exchange Capital Securities are acquired in the ordinary course of
such holder's business and such holder is not participating, and has no
arrangement or understanding with any person to participate, in a
distribution (within the meaning of the Securities Act) of the Exchange
Capital Securities. However, any holder of Old Capital Securities who is an
"affiliate" of the Trust or the Corporation or who intends to participate
in the Exchange Offer for the purpose of distributing the Exchange Capital
Securities, or any broker-dealer who purchased the Old Capital Securities
from the Trust to resell pursuant to Rule 144A or any other available
exemption under the Securities Act, (a) will not be able to rely on the
interpretations of the staff of the Commission set forth in the
above-mentioned no-action letters, (b) will not be permitted or entitled to
tender such Old Capital Securities in the Exchange Offer and (c) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any sale or other transfer of such Old
Capital Securities unless such sale is made pursuant to an exemption from
such requirements. In addition, as described below, if any broker-dealer
holds Old Capital Securities acquired for its own account as a result of
market-making or other trading activities and exchanges such Old Capital
Securities for Exchange Capital Securities, then such broker-dealer must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of such Exchange Capital Securities.
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Each holder of Old Capital Securities who wishes to exchange Old
Capital Securities for Exchange Capital Securities in the Exchange Offer
will be required to represent that (i) it is not an "affiliate" of the
Trust or the Corporation, (ii) any Exchange Capital Securities to be
received by it are being acquired in the ordinary course of its business
and (iii) it has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of
such Exchange Capital Securities. Each broker-dealer that receives Exchange
Capital Securities for its own account pursuant to the Exchange Offer must
acknowledge that it acquired the Old Capital Securities for its own account
as the result of market-making activities or other trading activities and
must agree that it will deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange Capital
Securities. The Letter of Transmittal states that by so acknowledging and
by delivering a prospectus, a broker-dealer will not be deemed to admit
that it is an "underwriter" within the meaning of the Securities Act. Based
on the position taken by the staff of the Commission in the no-action
letters referred to above, the Corporation and the Trust believe that
broker-dealers who acquired Old Capital Securities for their own accounts
as a result of market-making activities or other trading activities may
fulfill their prospectus delivery requirements with respect to the Exchange
Capital Securities received upon exchange of such Old Capital Securities
(other than Old Capital Securities which represent an unsold allotment from
the original sale of the Old Capital Securities) with the prospectus
prepared for the Exchange Offer so long as it contains a description of the
plan of distribution with respect to the resale of such Exchange Capital
Securities. Accordingly, subject to certain provisions set forth in the
Registration Agreement and to the limitations set out herein, the
Corporation and the Trust have agreed that this Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of such Exchange Capital Securities for a period
commencing on the Expiration Date and ending 180 days after the Expiration
Date or, if earlier, when all such Exchange Capital Securities have been
disposed of by such broker-dealer. See "Plan of Distribution." Any
broker-dealer who is an "affiliate" of the Trust or the Corporation may not
rely on such no-action letters and must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with
any resale transaction.
In that regard, each broker-dealer who surrenders Old
Capital Securities pursuant to the Exchange Offer will be deemed to have
agreed, by execution of the Letter of Transmittal, that, upon receipt of
notice from the Corporation or the Trust of the occurrence of any event or
the discovery of any fact which makes any statement contained or
incorporated by reference in this Prospectus untrue in any material respect
or which causes this Prospectus to omit to state a material fact necessary
in order to make the statements contained or incorporated by reference
herein, in light of the circumstances under which they were made, not
misleading or of the occurrence of certain other events specified in the
Registration Agreement, such broker-dealer will suspend the sale of
Exchange Capital Securities (or the Exchange Junior Subordinated Debt
Securities, as applicable) pursuant to this Prospectus until the
Corporation or the Trust has amended or supplemented this Prospectus to
correct such misstatement or mission and has furnished copies of the
amended or supplemented Prospectus to such broker-dealer or the Corporation
or the Trust has given notice that the sale of the Exchange Capital
Securities (or the Exchange Junior Subordinated Debt Securities, as
applicable) may be resumed.
Neither the Corporation nor the Trust has sought its own interpretive
letter and there can be no assurance that the staff of the Commission would
make a similar determination with respect to the Exchange Offer as it has
in such no-action letters to third parties.
DISTRIBUTIONS ON THE EXCHANGE CAPITAL SECURITIES
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated Distributions on such
Old Capital Securities for any period from the Distribution Date with
respect to such Old Capital Securities immediately preceding the original
issue date of the Exchange Capital Securities or, if no such Distribution
Date has occurred, from the original issue date of such Old Capital
Securities, and such tendering holders will be deemed to have waived the
right to receive any such Distributions. However, because Distributions on
the Exchange Capital Securities will
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accumulate from the later of the Distribution Date of the Old Capital
Securities immediately preceding the original issue date of the Exchange
Capital Securities and the original issue date of the Old Capital
Securities, the amount of the Distributions received by holders whose Old
Capital Securities are accepted for exchange will not be affected by the
exchange.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Trust will not be required to accept
for exchange, or to exchange, any Old Capital Securities for any Exchange
Capital Securities, and, as described below, may terminate the Exchange
Offer (whether or not any Old Capital Securities have theretofore been
accepted for exchange) or may waive any conditions to or amend the Exchange
Offer, if any of the following conditions have occurred or exists or have
not been satisfied:
(a) there shall occur a change in the current interpretation by the
staff of the Commission which permits the Exchange Capital Securities
issued pursuant to the Exchange Offer in exchange for Old Capital
Securities to be offered for resale, resold and otherwise transferred by
holders thereof (other than broker-dealers and any such holder which is an
"affiliate" of the Trust or the Corporation within the meaning of Rule 405
under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act; provided that such
Exchange Capital Securities are acquired in the ordinary course of such
holder's business and such holders have no arrangement or understanding
with any person to participate in the distribution of such Exchange Capital
Securities; or
(b) any action or proceeding shall have been instituted or threatened
in any court or by or before any governmental agency or body with respect
to the Exchange Offer which, in the Corporation's and the Trust's judgment,
would reasonably be expected to impair the ability of the Corporation or
the Trust to proceed with the Exchange Offer; or
(c) any law, statute, rule or regulation shall have been adopted or
enacted which, in the Corporation's and the Trust's judgment, would
reasonably be expected to impair the ability of the Corporation or the
Trust to proceed with the Exchange Offer; or
(d) a banking moratorium shall have been declared by United States
federal or New York State authorities which, in the Corporation's and the
Trust's judgment, would reasonably be expected to impair the ability of the
Corporation or the Trust to proceed with the Exchange Offer; or
(e) trading on the New York Stock Exchange or generally in the United
States over-the-counter market shall have been suspended by order of the
Commission or any other governmental authority which, in the Corporation's
and the Trust's judgment, would reasonably be expected to impair the
ability of the Corporation or the Trust to proceed with the Exchange Offer;
or
(f) a stop order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the Registration
Statement or proceedings shall have been initiated or, to the knowledge of
the Corporation or the Trust, threatened for that purpose; or any change,
or any development involving a prospective change, in the business or
financial affairs of the Corporation or the Trust or any of their
subsidiaries have occurred which, in the judgment of the Corporation and
the Trust, might materially impair the ability of the Corporation or the
Trust to proceed with the Exchange Offer; or
there is a reasonable likelihood in the Corporation's and the Trust's
judgment that, or a material uncertainty exists in the Corporation's and
the Trust's judgment as to whether, consummation of the Exchange Offer
would result in an adverse tax consequence to the Corporation.
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If the Corporation and the Trust determine in their sole and
absolute discretion that any of the foregoing events or conditions has
occurred or exists or has not been satisfied, the Corporation and the Trust
may, subject to applicable law, terminate the Exchange Offer (whether or
not any Old Capital Securities have theretofore been accepted for exchange)
or may waive any such condition or otherwise amend the terms of the
Exchange Offer in any respect. If such waiver or amendment constitutes a
material change to the Exchange Offer, the Corporation and the Trust will
promptly disclose such waiver or amendment by means of a prospectus
supplement that will be distributed to the registered holders of the Old
Capital Securities, and the Corporation and the Trust will extend the
Exchange Offer to the extent required by applicable law.
EXCHANGE AGENT
Bankers Trust Company has been appointed as Exchange Agent for the
Exchange Offer. Delivery of the Letters of Transmittal and any other
required documents, questions, requests for assistance, and requests for
additional copies of this Prospectus or of the Letter of Transmittal should
be directed to the Exchange Agent as follows:
Inquiries by Telephone: 1-800-735-7777
By Facsimile: 615-835-3701
By mail: By hand:
BT Services Tennessee, Inc. Bankers Trust Company
Reorganization Unit Corporate Trust and Agency Group
P.O. Box 292737 123 Washington Street
Nashville, TN 37229-2737 First Floor Window
New York, NY 10008
By overnight mail:
BT Services Tennessee, Inc.
Corporate Trust and Agency Group
Reorganization Unit
648 Grassmere Park Dr.
Nashville, TN 37211
Delivery to other than the above addresses in the manner
prescribed for such address or facsimile number will not constitute a valid
delivery.
FEES AND EXPENSES
The Corporation has agreed to pay the Exchange Agent reasonable
and customary fees for its services and will reimburse it for its
reasonable out-of-pocket expenses in connection therewith. The Corporation
will also pay brokerage houses and other custodians, nominees and
fiduciaries the reasonable out-of-pocket expenses incurred by them in
forwarding copies of this Prospectus and related documents to the
beneficial owners of Old Capital Securities, and in tendering for their
customers.
Holders who tender their Old Capital Securities for exchange will
not be obligated to pay any transfer taxes in connection therewith. If,
however, Exchange Capital Securities are to be delivered to, or are to be
issued in the name of, any person other than the registered holder of the
Old Capital Securities tendered, or if a transfer tax is imposed for any
reason other than the exchange of Old Capital Securities in connection with
the Exchange Offer, then the amount of any such transfer taxes (whether
imposed on the registered holder or any other persons) will be payable by
the tendering holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with the Letter of Transmittal, the
amount of such transfer taxes will be billed directly to such tendering
holder.
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Neither the Corporation nor the Trust will make any payment to
brokers, dealers or others soliciting acceptances of the Exchange Offer.
DESCRIPTION OF THE EXCHANGE SECURITIES
DESCRIPTION OF CAPITAL SECURITIES
Pursuant to the terms of the Declaration, the Issuer Trustees have
issued the Old Capital Securities and the Common Securities and will issue
the
Exchange Capital Securities. The Exchange Capital Securities will represent
beneficial ownership interests in the Trust and the holders thereof will be
entitled to a preference in certain circumstances with respect to
Distributions and amounts payable on redemption of the Trust Securities or
liquidation of the Trust over the Common Securities, as well as other
benefits described in the Declaration. See "--Subordination of Common
Securities." The Declaration has been qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). This summary of
certain provisions of the Capital Securities, the Common Securities and the
Declaration does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, all the provisions of the
Declaration, including the definitions therein of certain terms. The form
of the Declaration is filed as an exhibit to the Registration Statement of
which this Prospectus is a part.
GENERAL
The Capital Securities (including the Old Capital Securities and
the Exchange Capital Securities) will be limited to $150,000,000 aggregate
Liquidation Amount at any one time outstanding. The Capital Securities will
rank pari passu, and payments will be made thereon pro rata, with the
Common Securities except as described under "--Subordination of Common
Securities." Legal title to the Old Junior Subordinated Debt Securities is,
and legal title to the Exchange Junior Subordinated Debt Securities will
be, held by the Property Trustee in trust for the benefit of the holders of
the Capital Securities and Common Securities. The Guarantee Agreement
provides for the guarantee on a subordinated basis of payments of
Distributions and amounts payable on redemption of the Capital Securities
or on liquidation of the Trust with respect to the Capital Securities but
will not guarantee such payments when the Trust does not have funds on hand
available to make such payments. See "-- Description of Guarantee."
DISTRIBUTIONS
The Capital Securities represent beneficial ownership interests in
the Trust, and Distributions on each Capital Security will be payable at
the annual rate of 7.75% of the stated Liquidation Amount of $1,000, and
will be payable semi-annually in arrears on May 15 and November 15 of each
year to the holders of the Capital Securities at the close of business on
the May 1 and November 1 (each, a "record date"), as the case may be, next
preceding the relevant Distribution Date. Distributions on the Capital
Securities will be cumulative. Distributions on the Old Capital Securities
accumulate from the date of original issuance, and the first Distribution
Date thereon is May 15, 1997. Holders of Old Capital Securities whose Old
Capital Securities are accepted for exchange will not receive accumulated
Distributions on such Old Capital Securities for any period from the
Distribution Date with respect to such Old Capital Securities immediately
preceding the original issue date of the Exchange Capital Securities or, if
no such Distribution Date has occurred, from the original issue date of
such Old Capital Securities, and such tendering holders will be deemed to
have waived the right to receive any such Distributions. However, because
Distributions on the Exchange Capital Securities will accumulate from the
later of the Distribution Date of the Old Capital Securities immediately
preceding the original issue date of the Exchange Capital Securities and
the original issue date of the Old Capital Securities, the amount of the
Distributions received by holders whose Old Capital Securities are accepted
for exchange will not be affected by the exchange. The amount of
Distributions payable for any period will be computed on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
Distributions are payable on the Capital Securities is not a Business Day
(as defined below), payment of
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the Distributions payable on such date will be made on the next succeeding
day that is a Business Day (and without any additional Distributions or
other payments in respect of any such delay) except that, if such Business
Day is in the next succeeding calendar year, payment of such Distributions
shall be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on the date such payment was
originally payable (each date on which Distributions are payable in
accordance with the foregoing, a "Distribution Date"). A "Business Day"
shall mean any day other than a Saturday or a Sunday, or a day on which
banking institutions in The City of New York are authorized or required by
law or executive order to remain closed, or a day on which the corporate
trust office of the Property Trustee or the Debenture Trustee is closed for
business.
So long as no Debenture Event of Default has occurred and is
continuing, the Corporation has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debt Securities at any time
or from time to time for a period not exceeding 10 consecutive semi-annual
periods with respect to each Extension Period; provided that no Extension
Period may extend beyond the Stated Maturity of the Junior Subordinated
Debt Securities. As a consequence of any such election, semi-annual
Distributions on the Capital Securities by the Trust will be deferred
during any such Extension Period. Distributions to which holders of the
Capital Securities are entitled will accumulate additional Distributions
thereon at the rate per annum of 7.75% thereof, compounded semi-annually
from the relevant payment date for such Distributions. The term
"Distributions" as used herein shall include any such additional
Distributions. During any Extension Period, the Corporation may not (i)
declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock (which includes common and preferred stock),
(ii) make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Corporation
(including Other Debentures) that rank pari passu in all respects with or
junior in interest to the Junior Subordinated Debt Securities or (iii) make
any guarantee payments with respect to any guarantee by the Corporation of
the debt securities of any subsidiary of the Corporation (including Other
Guarantees) if such guarantee ranks pari passu in all respects with or
junior in interest to the Junior Subordinated Debt Securities (other than
(a) dividends or distributions in common stock of the Corporation, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under the Guarantee, (d) purchases or acquisitions of
shares of the Corporation's common stock in connection with the
satisfaction by the Corporation of its obligations under any employee
benefit plan or any other contractual obligation of the Corporation (other
than a contractual obligation ranking pari passu in all respects with or
junior to the Junior Subordinated Debt Securities), (e) as a result of a
reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock for
another class or series of the Corporation's capital stock or (f) the
purchase of fractional interests in shares of the Corporation's stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged). Prior to the termination of any
such Extension Period, the Corporation may further extend such Extension
Period, provided that such extension does not cause such Extension Period
to exceed 10 consecutive semi-annual periods, to end on a date other than
an Interest Payment Date or to extend beyond the Stated Maturity of the
Junior Subordinated Debt Securities. Upon the termination of any such
Extension Period and the payment of all amounts then due, and subject to
the foregoing limitations, the Corporation may elect to begin a new
Extension Period. The Corporation must give the Property Trustee, the
Administrative Trustees and the Debenture Trustee notice of its election of
any such Extension Period at least five Business Days prior to the earlier
of (i) the date the Distributions on the Capital Securities would have been
payable except for the election to begin such Extension Period or (ii) the
date the Administrative Trustees are required to give notice to any
automated quotation system or to holders of such Capital Securities of the
record date or the date such Distributions are payable but in any event not
less than five Business Days prior to such record date. There is no
limitation on the number of times that the Corporation may elect to begin
an Extension Period. See "Description of the Exchange
Securities--Description of Junior Subordinated Debt Securities--Option to
Extend Interest Payment Period" and "Certain United States Federal Income
Tax Consequences--Interest Income and Original Issue Discount."
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The Corporation has no current intention of exercising its right
to defer payments of interest on the Junior Subordinated Debt Securities.
The revenue of the Trust available for distribution to holders of
the Capital Securities will be limited to payments under the Junior
Subordinated Debt Securities. See "Description of the Exchange
Securities--Description of Junior Subordinated Debt Securities--General."
If the Corporation does not make interest payments on the Junior
Subordinated Debt Securities, the Property Trustee will not have funds
available to pay Distributions on the Capital Securities. The payment of
Distributions (if and to the extent the Trust has funds legally available
for the payment of such Distributions and cash sufficient to make such
payments) is guaranteed by the Corporation on a limited basis as set forth
herein under "Description of the Exchange Securities--Description of
Guarantee."
REDEMPTION
Upon the repayment in full at the Stated Maturity of the Junior
Subordinated Debt Securities or redemption in whole or in part of the
Junior Subordinated Debt Securities (other than following the distribution
of the Junior Subordinated Debt Securities to the holders of the Trust
Securities), the proceeds from such repayment or redemption shall be
applied by the Property Trustee to redeem a Like Amount of Trust
Securities, upon not less than 30 nor more than 60 days' notice of a date
of redemption (the "Redemption Date"), at the applicable Redemption Price,
which shall be equal to (i) in the case of the repayment of the Junior
Subordinated Debt Securities at the Stated Maturity, the Maturity
Redemption Price (equal to the principal of, and accrued but unpaid
interest on, the Junior Subordinated Debt Securities) or (ii) in the case
of the optional redemption of the Junior Subordinated Debt Securities, the
Optional Redemption Price (equal to the Optional Prepayment Price (as
defined under "Description of the Exchange Securities--Description of
Junior Subordinated Debt Securities--Optional Redemption") in respect of
the Junior Subordinated Debt Securities). See "Description of the Exchange
Securities--Description of Junior Subordinated Debt Securities--Optional
Redemption." If less than all of the Junior Subordinated Debt Securities
are to be redeemed on a Redemption Date, then the proceeds from such
redemption shall be allocated to the redemption pro rata of the Capital
Securities and the Common Securities. The amount of premium, if any, paid
by the Corporation upon the redemption of the Junior Subordinated Debt
Securities to be redeemed on a Redemption Date shall be allocated to the
redemption pro rata of the Capital Securities and the Common
Securities.
The Corporation has the right to redeem the Junior Subordinated
Debt Securities in whole or in part at any time on or after November 15,
2006 at the applicable Optional Prepayment Price, subject to receipt of
prior approval by the Federal Reserve if then required under applicable
capital guidelines or policies of the Federal Reserve.
REDEMPTION PROCEDURES
Trust Securities shall be redeemed, subject to receipt of prior
approval by the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve, at the applicable Redemption
Price with the proceeds from the contemporaneous repayment or redemption of
the Junior Subordinated Debt Securities. Redemptions of the Trust
Securities shall be made and the applicable Redemption Price shall be
payable on each Redemption Date only to the extent that the Trust has funds
on hand available for the payment of such applicable Redemption Price. See
also "--Subordination of Common Securities."
If the Trust gives a notice of redemption in respect of the
Trust Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, to the extent funds are available, with respect to the
Capital Securities held in global form, the Property Trustee will deposit
irrevocably with DTC funds sufficient to pay the applicable Redemption
Price and will give DTC irrevocable instructions and authority to pay the
applicable Redemption Price to the holders of the Capital Securities. See
"--Form, Denomination, Book-Entry Procedures and Transfer." With respect to
the Capital Securities held in
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certificated form, the Property Trustee, to the extent funds are available,
will irrevocably deposit with the paying agent for the Capital Securities
funds sufficient to pay the applicable Redemption Price and will give such
paying agent irrevocable instructions and authority to pay the applicable
Redemption Price to the holders thereof upon surrender of their
certificates evidencing the Capital Securities. See "--Payment and Paying
Agency." Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date shall be payable to the holders of the Capital
Securities on the relevant record dates for the related Distribution Dates.
If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of the holders of
the Capital Securities will cease, except the right of the holders of the
Capital Securities to receive the applicable Redemption Price, but without
interest on such Redemption Price, and the Capital Securities will cease to
be outstanding. In the event that any date fixed for redemption of Capital
Securities is not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding day which is
a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day.
In the event that payment of the applicable Redemption Price is improperly
withheld or refused and not paid either by the Trust or by the Corporation
pursuant to the Guarantee, Distributions on Capital Securities will
continue to accrue at the then applicable rate, from the Redemption Date
originally established by the Trust to the date such applicable Redemption
Price is actually paid, in which case the actual payment date will be the
date fixed for redemption for purposes of calculating the applicable
Redemption Price.
Subject to applicable law (including, without limitation, United
States Federal securities law), the Corporation or its subsidiaries may at
any time and from time to time purchase outstanding Capital Securities by
tender, in the open market or by private agreement.
Payment of the applicable Redemption Price on, and any
distribution of Junior Subordinated Debt Securities to holders of, the
Trust Securities shall be made to the applicable recordholders thereof as
they appear on the register therefor on the relevant record date, provided
that a Redemption Date falls on a Distribution Date.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each holder of Trust
Securities at its registered address. Unless the Corporation defaults in
payment of the applicable Prepayment Price on, or in the repayment of, the
Junior Subordinated Debt Securities, on and after the Redemption Date
Distributions will cease to accrue on the Trust Securities called for
redemption.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The Corporation will have the right at any time (including upon
the occurrence of a Tax Event) to terminate the Trust and cause a Like
Amount of the Junior Subordinated Debt Securities to be distributed to the
holders of the Trust Securities in liquidation of the Trust; provided,
however, that following such distribution of the Junior Subordinated Debt
Securities, the Corporation agrees to use its best efforts to maintain any
ratings of such Junior Subordinated Debt Securities by any nationally
recognized rating agency for so long as any such Junior Subordinated Debt
Securities are outstanding. Such right is subject to prior approval of the
Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve.
If the Junior Subordinated Debt Securities are distributed to
the holders of Trust Securities as a result of the occurrence of a Tax
Event and such Tax Event continues notwithstanding such distribution, the
Corporation has the right to prepay the Junior Subordinated Debt Securities
in whole, but not in part, at the Tax Event Prepayment Price. See
"Description of the Exchange Securities Description of Junior Subordinated
Debt Securities - Tax Event Prepayment."
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Upon liquidation of the Trust and certain other events, the Junior
Subordinated Debt Securities may be distributed to holders of the Capital
Securities. Under current United States Federal income tax law and
interpretations thereof and assuming, as expected, that the Trust is
treated as a grantor trust for United States Federal income tax purposes, a
distribution by the Trust of the Junior Subordinated Debt Securities
pursuant to a liquidation of the Trust will not be a taxable event to the
Trust or to holders of the Capital Securities and will result in a holder
of the Capital Securities receiving directly such holder's pro rata share
of the Junior Subordinated Debt Securities (previously held indirectly
through the Trust). If, however, the liquidation of the Trust were to occur
because the Trust is subject to United States Federal income tax with
respect to income accrued or received on the Junior Subordinated Debt
Securities as a result of the occurrence of a Tax Event or otherwise, the
distribution of Junior Subordinated Debt Securities to holders of the
Capital Securities by the Trust could be a taxable event to the Trust and
each holder, and holders of the Capital Securities may be required to
recognize gain or loss as if they had exchanged their Capital Securities
for the Junior Subordinated Debt Securities they received upon the
liquidation of the Trust. See "Certain United States Federal Income Tax
Consequences--Distribution of Junior Subordinated Debt Securities to
Holders of Capital Securities."
The Trust shall automatically terminate upon the first to occur
of: (i) certain events of bankruptcy, dissolution or liquidation of the
Corporation; (ii) the distribution of a Like Amount of the Junior
Subordinated Debt Securities to the holders of the Trust Securities if the
Corporation, as Depositor, has given written direction to the Property
Trustee to terminate the Trust (which direction is optional and, except as
described above, wholly within the discretion of the Corporation, as
Depositor); (iii) redemption of all of the Trust Securities as described
under " -- Redemption" above; (iv) expiration of the term of the Trust; and
(v) the entry of an order for the dissolution of the Trust by a court of
competent jurisdiction.
If an early termination occurs as described in clause (i),
(ii), (iv) or (v) above, the Trust shall be liquidated by the Issuer
Trustees as expeditiously as the Issuer Trustees determine to be possible
by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to the holders of the Trust Securities
a Like Amount of the Junior Subordinated Debt Securities, unless such
distribution is determined by the Property Trustee not to be practical, in
which event such holders will be entitled to receive out of the assets of
the Trust available for distribution to holders an amount equal to, in the
case of holders of Capital Securities, the aggregate of the Liquidation
Amount plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If such
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the Capital
Securities shall be paid on a pro rata basis. The holder(s) of the Common
Securities will be entitled to receive distributions upon any such
liquidation pro rata with the holders of the Capital Securities, except
that if a Debenture Event of Default has occurred and is continuing, the
Capital Securities shall have a priority over the Common Securities. See
"--Subordination of Common Securities." If an early termination occurs as
described in clause (iii) above, the Junior Subordinated Debt Securities
will be subject to optional redemption in whole (but not in part).
"Like Amount" means (i) with respect to a redemption of Capital
Securities, Capital Securities having a Liquidation Amount equal to that
portion of the principal amount of Junior Subordinated Debt Securities to
be contemporaneously redeemed in accordance with the Indenture, allocated
to the Common Securities and to the Capital Securities based upon the
relative Liquidation Amounts of such classes and the proceeds of which will
be used to pay the Redemption Price of the Capital Securities and (ii) with
respect to a distribution of Junior Subordinated Debt Securities to holders
of Capital Securities in connection with a dissolution or liquidation of
the Trust, Junior Subordinated Debt Securities having a principal amount
equal to the Liquidation Amount of the Capital Securities of the holder to
whom such Junior Subordinated Debt Securities are distributed.
If the Corporation elects not to redeem the Junior Subordinated
Debt Securities prior to maturity and the Trust is not liquidated and the
Junior Subordinated Debt Securities are not distributed to holders of the
Trust Securities, the Capital Securities will remain outstanding until the
repayment of the Junior
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Subordinated Debt Securities at the Stated Maturity.
After the liquidation date is fixed for any distribution of Junior
Subordinated Debt Securities to holders of the Trust Securities, (i) the
Capital Securities will no longer be deemed to be outstanding, (ii) DTC or
its nominee, as the record holder of the Capital Securities, will receive a
registered global certificate or certificates representing the Junior
Subordinated Debt Securities to be delivered upon such distribution with
respect to Capital Securities held by DTC or its nominee and (iii) any
certificates representing Capital Securities not held by DTC or its nominee
will be deemed to represent Junior Subordinated Debt Securities having a
principal amount equal to the Liquidation Amount of such Capital Securities
and bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Capital Securities until such
certificates are presented to the Administrative Trustees or their agent
for cancellation, whereupon the Corporation will issue to such holder, and
the Debenture Trustee will authenticate, a certificate representing such
Junior Subordinated Debt Securities.
There can be no assurance as to the market prices for the Capital
Securities or the Junior Subordinated Debt Securities that may be
distributed in exchange for the Trust Securities if a dissolution and
liquidation of the Trust were to occur. Accordingly, the Capital Securities
that an investor may hold, or the Junior Subordinated Debt Securities that
the investor may receive on dissolution and liquidation of the Trust, may
trade at a discount to the price that the investor paid to purchase the
Capital Securities.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the
Capital Securities and Common Securities shall be made pro rata to the
holders of Capital Securities and Common Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on
any Distribution Date or Redemption Date any Event of Default resulting
from a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or applicable Redemption Price of, any of
the Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
on all of the outstanding Capital Securities for all Distribution periods
terminating on or prior thereto or, in the case of payment of the
applicable Redemption Price, the full amount of such Redemption Price on
all of the outstanding Capital Securities shall have been made or provided
for, and all funds available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions on, or the Redemption
Price of, the Capital Securities then due and payable.
In the case of any Event of Default under the Declaration
resulting from a Debenture Event of Default, the Corporation as holder of
the Common Securities will be deemed to have waived any right to act with
respect to any such Event of Default until the effect of all such Events of
Default have been cured, waived or otherwise eliminated. Until all such
Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the holders of such Capital
Securities and not on behalf of the Corporation as holder of the Common
Securities, and only the holders of the Capital Securities will have the
right to direct the Property Trustee to act on their behalf.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default"
under the Declaration (an "Event of Default") (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default (see
"Description of the Exchange Securities--Description of Junior Subordinated
Debt Securities--Debenture Events of Default"); or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
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(iii) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any
material respect, of any covenant or warranty of the Issuer Trustees in the
Declaration (other than a covenant or warranty, a default in the
performance of which or the breach of which is addressed in clause (ii) or
(iii) above), and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
defaulting Issuer Trustee or Issuer Trustees by the holders of at least 25%
in aggregate Liquidation Amount of the outstanding Capital Securities, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" under the
Declaration; or
(v) the occurrence of certain events of bankruptcy or
insolvency with respect to the Property Trustee and the failure by the
Corporation to appoint a successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit notice of such Event of Default to the holders of the Capital
Securities, the Administrative Trustees and the Corporation, as Depositor,
unless such Event of Default shall have been cured or waived. The
Corporation, as Depositor, and the Administrative Trustees are required to
file annually with the Property Trustee a certificate as to whether or not
they are in compliance with all the conditions and covenants applicable to
them under the Declaration.
If a Debenture Event of Default has occurred and is continuing,
the Capital Securities shall have a preference over the Common Securities
upon termination of the Trust as described above. See "--Liquidation of the
Trust and Distribution of Junior Subordinated Debt Securities" and
"--Subordination of Common Securities."
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by the holder of
the Common Securities. If a Debenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed at
such time by the holders of a majority in Liquidation Amount of the
outstanding Capital Securities. In no event will the holders of the Capital
Securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Corporation as the holder of the Common Securities. No resignation or
removal of an Issuer Trustee and no appointment of a successor trustee
shall be effective until the acceptance of appointment by the successor
trustee in accordance with the provisions of the Declaration.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the
Trust's property may at the time be located, the Corporation, as the holder
of the Common Securities, and the Administrative Trustees shall have power
to appoint one or more persons either to act as a co-trustee, jointly with
the Property Trustee, of all or any part of such Trust's property, or to
act as separate trustee of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in
such person or persons in such capacity any property, title, right or power
deemed necessary or desirable, subject to the provisions of the
Declaration. In case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment.
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MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any Person (as defined in the Declaration) into which the
Property Trustee, the Delaware Trustee or any Administrative Trustee that
is not a natural person may be merged or converted or with which it may be
consolidated or any Person resulting from any merger, conversion or
consolidation to which such Issuer Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Issuer Trustee, shall be the successor of such Issuer Trustee under the
Declaration, provided such Person shall be otherwise qualified and
eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge with or into, consolidate, amalgamate or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except as
described below or as otherwise set forth in the Declaration. The Trust
may, at the request of the Corporation, as Depositor, with the consent of
the Administrative Trustees but without the consent of the holders of the
Capital Securities, the Property Trustee or the Delaware Trustee, merge
with or into, consolidate, amalgamate or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety
to, a trust organized as such under the laws of any State; provided,
however, that (i) such successor entity either (a) expressly assumes all of
the obligations of the Trust with respect to the Capital Securities or (b)
substitutes for the Capital Securities other securities having
substantially the same terms as the Capital Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Capital Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the Corporation
expressly appoints a trustee of such successor entity possessing the same
powers and duties as the Property Trustee as the holder of the Junior
Subordinated Debt Securities, (iii) the Successor Securities are listed or
traded, or any Successor Securities will be listed or traded upon
notification of issuance, on any national securities exchange or other
organization on which the Capital Securities are then listed or traded, if
any, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Capital
Securities (including any Successor Securities) in any material respect,
(vi) such successor entity has a purpose identical to that of the Trust,
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Corporation has received an opinion from
independent counsel to the Trust experienced in such matters to the effect
that (a) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Capital Securities (including any
Successor Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor such successor entity will be required to
register as an investment company under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), and (viii) the Corporation or
any permitted successor or assignee owns all of the common securities of
such successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided by
the Guarantee. Notwithstanding the foregoing, the Trust shall not, except
with the consent of holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would
cause the Trust or the successor entity to be classified as other than a
grantor trust for United States Federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION
Except as provided below and under "Description of the Exchange
Securities--Description of Guarantee--Amendments and Assignment" and as
otherwise required by law and the Declaration, the
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holders of the Capital Securities will have no voting rights.
The Declaration may be amended from time to time by the
Corporation, the Property Trustee and the Administrative Trustees, without
the consent of the holders of the Trust Securities, (i) to cure any
ambiguity, correct or supplement any provision in the Declaration that may
be inconsistent with any other provision, or to make any other provisions
with respect to matters or questions arising under the Declaration which
shall not be inconsistent with the other provisions of the Declaration, or
(ii) to modify, eliminate or add to any provisions of the Declaration to
such extent as shall be necessary to ensure that the Trust will be
classified for United States Federal income tax purposes as a grantor trust
at all times that any Trust Securities are outstanding or to ensure that
the Trust will not be required to register as an "investment company" under
the Investment Company Act; provided, however, that in the case of clause
(i), such action shall not adversely affect in any material respect the
interests of any holder of Trust Securities, and any amendments of the
Declaration shall become effective when notice thereof is given to the
holders of the Trust Securities. The Declaration may be amended by the
Issuer Trustees and the Corporation with (i) the consent of holders
representing not less than a majority (based upon Liquidation Amounts) of
the outstanding Trust Securities, and (ii) receipt by the Issuer Trustees
of an opinion of counsel to the effect that such amendment or the exercise
of any power granted to the Issuer Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from status as
an "investment company" under the Investment Company Act. In addition,
without the consent of each holder of Trust Securities, the Declaration may
not be amended to (i) change the amount or timing of any Distribution on
the Trust Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a holder of Trust Securities
to institute suit for the enforcement of any such payment on or after such
date.
So long as any Junior Subordinated Debt Securities are held by the
Trust, the Issuer Trustees shall not (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Property Trustee
with respect to the Junior Subordinated Debt Securities, (ii) waive any
past default that is waivable under Section 5.13 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of
all the Junior Subordinated Debt Securities shall be due and payable or
(iv) consent to any amendment, modification or termination of the Indenture
or the Junior Subordinated Debt Securities, where such consent shall be
required, without, in each case, obtaining the prior approval of the
holders of a majority in aggregate Liquidation Amount of all outstanding
Capital Securities; provided, however, that where a consent under the
Indenture would require the consent of each holder of Junior Subordinated
Debt Securities affected thereby, no such consent shall be given by the
Property Trustee without the prior consent of each holder of the Capital
Securities. The Issuer Trustees shall not revoke any action previously
authorized or approved by a vote of the holders of the Capital Securities
except by subsequent vote of such holders. The Property Trustee shall
notify each holder of Capital Securities of any notice of default with
respect to the Junior Subordinated Debt Securities. In addition to
obtaining the foregoing approvals of such holders of the Capital
Securities, prior to taking any of the foregoing actions, the Issuer
Trustees shall obtain an opinion of counsel experienced in such matters to
the effect that the Trust will not be classified as an association or a
publicly traded partnership taxable as a corporation for United States
Federal income tax purposes on account of such action.
Any required approval of holders of Capital Securities may be
given at a meeting of such holders convened for such purpose or pursuant to
written consent. The Property Trustee will cause a notice of any meeting at
which holders of Capital Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
given to each holder of record of Capital Securities in the manner set
forth in the Declaration.
No vote or consent of the holders of Capital Securities will be
required for the Trust to redeem and cancel the Capital Securities in
accordance with the Declaration.
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Notwithstanding that holders of the Capital Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Capital Securities that are owned by the Corporation, the Issuer
Trustees or any affiliate of the Corporation or any Issuer Trustees shall,
for purposes of such vote or consent, be treated as if they were not
outstanding.
EXPENSES AND TAXES
In the Indenture, the Corporation, as borrower, has agreed to pay
all debts and other obligations (other than with respect to the Capital
Securities) and all costs and expenses of the Trust (including the fees and
expenses of the Issuer Trustees and the costs and expenses relating to the
operation of the Trust and the Exchange Offer)and to pay any and all taxes
and all costs and expenses with respect to the foregoing (other than United
States withholding taxes) to which the Trust might become subject. The
foregoing obligations of the Corporation under the Indenture are for the
benefit of, and shall be enforceable by, any person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor"), whether or
not such Creditor has received notice thereof. Any such Creditor may
enforce such obligations of the Corporation directly against the
Corporation, and the Corporation has irrevocably waived any right or remedy
to require that any such Creditor take any action against the Trust or any
other person before proceeding against the Corporation. The Corporation has
also agreed in the Indenture to execute such additional agreement(s) as may
be necessary or desirable to give full effect to the foregoing.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
In the event that Exchange Capital Securities are issued in
certificated form, such Exchange Capital Securities will be in blocks
having a Liquidation Amount of not less than $100,000 (100 Exchange Capital
Securities) and may be transferred or exchanged in such blocks in the
manner and at the offices described below.
The Exchange Capital Securities initially will be represented by
one or more Exchange Capital Securities in registered, global form
(collectively, the "Global Exchange Capital Securities"). The Global
Exchange Capital Securities will be deposited upon issuance with the
Property Trustee as custodian for DTC, in New York, New York, and will be
registered in the name of DTC or its nominee, in each case for credit to an
account of a direct or indirect participant in DTC as described below.
Except as set forth below, the Global Exchange Capital Securities
may be transferred, in whole and not in part, only to another nominee of
DTC or to a successor of DTC or its nominee and only in amounts that would
not cause a holder to own less than 100 Exchange Capital Securities.
Beneficial interests in the Global Exchange Capital Securities may not be
exchanged for Exchange Capital Securities in certificated form except in
the limited circumstances described below. See "--Exchange of Book-Entry
Exchange Capital Securities for Certificated Exchange Capital Securities."
Transfer of beneficial interests in the Global Exchange Capital Securities
will be subject to the applicable rules and procedures of DTC and its
direct or indirect participants which may change from time to time.
DEPOSITARY PROCEDURES
DTC has advised the Trust and the Corporation as follows: DTC is a
limited purpose trust company organized under the laws of the State of New
York, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC was created to hold securities for its participating organizations
(collectively, the "Participants") and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic book-entry changes to accounts of its Participants, thereby
eliminating the need for physical movement of certificates. Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. Indirect access to DTC's
system is also available to other entities such as
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banks, brokers, dealers and trust companies that clear through or maintain
a custodial relationship with a Participant, either directly or indirectly
(collectively, the "Indirect Participants"). Persons who are not
Participants may beneficially own securities held by or on behalf of DTC
only through the Participants or the Indirect Participants. The ownership
interest and transfer of ownership interest of each actual purchaser of
each security held by or on behalf of DTC are recorded on the records of
the Participants and Indirect Participants.
DTC has also advised the Trust and the Corporation that, pursuant
to procedures established by it, (i) upon deposit of the Global Exchange
Capital Securities, DTC will credit the accounts of Participants designated
by the Exchange Agent with portions of the principal amount of the Global
Exchange Capital Securities and (ii) ownership of such interests in the
Global Exchange Capital Securities will be shown on, and the transfer of
ownership thereof will be effected only through, records maintained by DTC
(with respect to the Participants) or by the Participants and the Indirect
Participants (with respect to other owners of beneficial interests in the
Global Exchange Capital Securities).
Investors in the Global Exchange Capital Securities may hold their
interests therein directly through DTC, if they are Participants in DTC, or
indirectly through organizations which are Participants in such system. All
interests in a Global Exchange Capital Security will be subject to the
procedures and requirements of DTC. The laws of some states require that
certain persons take physical delivery in certificated form. Consequently,
the ability to transfer beneficial interests in a Global Exchange Capital
Security to such persons will be limited to that extent. Because DTC can
act only on behalf of Participants, which in turn act on behalf of Indirect
Participants and certain banks, the ability of a person having beneficial
interests in a Global Exchange Capital Security to pledge such interests to
persons or entities that do not participate in the DTC system, or otherwise
take actions in respect of such interests, may be affected by the lack of a
physical certificate evidencing such interests. For certain other
restrictions on the transferability of the Exchange Capital Securities, see
"--Exchange of Book-Entry Exchange Capital Securities for Certificated
Exchange Capital Securities."
Except as described below, owners of beneficial interests in the
Global Exchange Capital Securities will not be entitled to have Exchange
Capital Securities registered in their names, will not receive or be
entitled to receive physical delivery of Exchange Capital Securities in
certificated form and will not be considered the registered owners or
holders thereof under the Declaration for any purpose.
Payments in respect of the Global Exchange Capital Security
registered in the name of DTC or its nominee will be payable by the
Property Trustee to DTC or its nominee as the registered holder under the
Declaration by wire transfer in immediately available funds on each payment
date. Under the terms of the Declaration, the Property Trustee will treat
the persons in whose names the Exchange Capital Securities, including the
Global Exchange Capital Securities, are registered as the owners thereof
for the purpose of receiving such payments and for any and all other
purposes whatsoever. Consequently, neither the Property Trustee nor any
agent thereof has or will have any responsibility or liability for (i) any
aspect of DTC's records or any Participant's or Indirect Participant's
records relating to or payments made on account of beneficial ownership
interests in the Global Exchange Capital Securities, or for maintaining,
supervising or reviewing any of DTC's records or any Participant's or
Indirect Participant's records relating to the beneficial ownership
interests in the Global Exchange Capital Securities or (ii) any other
matter relating to the actions and practices of DTC or any of its
Participants or Indirect Participants. DTC has advised the Trust and the
Corporation that its current practice, upon receipt of any payment in
respect of securities such as the Exchange Capital Securities, is to credit
the accounts of the relevant Participants with the payment on the payment
date, in amounts proportionate to their respective holdings in Liquidation
Amount of beneficial interests in the Global Exchange Capital Security, as
shown on the records of DTC. Payments by the Participants and the Indirect
Participants to the beneficial owners of Exchange Capital Securities
represented by Global Exchange Capital Securities held through such
Participants will be governed by standing instructions and customary
practices and will be the responsibility of the Participants or the
Indirect Participants and will not be the responsibility of DTC, the
Property Trustee or the Trust. Neither the Trust nor the Property Trustee
will be liable for
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any delay by DTC or any of its Participants in identifying the beneficial
owners of the Exchange Capital Securities, and the Trust and the Property
Trustee may conclusively rely on and will be fully protected in relying on
instructions from DTC or its nominee for all purposes.
Interests in the Global Exchange Capital Securities will trade in
DTC's Same-Day Funds Settlement System and secondary market trading
activity in such interests will therefore settle in immediately available
funds, subject in all cases to the rules and procedures of DTC and its
Participants. Transfers between Participants in DTC will be effected in
accordance with DTC's procedures, and will be settled in same-day funds.
DTC has advised the Trust and the Corporation that it will take
any action permitted to be taken by a holder of Exchange Capital Securities
(including, without limitation, the presentation of Exchange Capital
Securities for exchange as described below) only at the direction of one or
more Participants to whose account with DTC interests in the Global
Exchange Capital Securities are credited and only in respect of such
portion of the aggregate Liquidation Amount of the Exchange Capital
Securities represented by the Global Exchange Capital Securities as to
which such Participant or Participants has or have given such direction.
However, if there is an Event of Default under the Declaration, DTC
reserves the right to exchange the Global Exchange Capital Securities for
legended Exchange Capital Securities in certificated form and to distribute
such Exchange Capital Securities to its Participants.
So long as DTC or its nominee is the registered owner of the
Global Exchange Capital Securities, DTC or such nominee, as the case may
be, will be considered the sole owner or holder of the Exchange Capital
Securities represented by the Global Exchange Capital Security for all
purposes under the Declaration.
The information in this section concerning DTC and its book-entry
system has been obtained from sources that the Trust and the Corporation
believe to be reliable, but neither the Trust nor the Corporation takes
responsibility for the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate
transfers of interest in the Global Exchange Capital Securities among
Participants in DTC, it is under no obligation to perform or to continue to
perform such procedures, and such procedures may be discontinued at any
time. Neither the Trust nor the Property Trustee will have any
responsibility for the performance by DTC or its Participants or Indirect
Participants of their respective obligations under the rules and procedures
governing their operations.
EXCHANGE OF BOOK-ENTRY EXCHANGE CAPITAL SECURITIES FOR CERTIFICATED EXCHANGE
CAPITAL SECURITIES
A Global Exchange Capital Security is exchangeable for Exchange
Capital Securities in registered certificated form if (i) DTC (x) notifies
the Trust that it is no longer willing or able to properly discharge its
responsibilities with respect to the Exchange Capital Securities and the
Corporation is unable to locate a qualified successor or (y) has ceased to
be a clearing agency registered under the Exchange Act; (ii) the
Corporation at its option elects to terminate the book-entry system through
DTC; or (iii) there shall have occurred and be continuing a Debenture Event
of Default. In addition, beneficial interests in a Global Exchange Capital
Security may be exchanged by or on behalf of DTC for certificated Exchange
Capital Securities upon request by DTC but only upon at least 20 days prior
written notice given to the Property Trustee in accordance with DTC's
customary procedures. In all cases, certificated Exchange Capital
Securities delivered in exchange for any Global Exchange Capital Security
or beneficial interests therein will be registered in the names, and issued
in any approved denominations, requested by or on behalf of DTC (in
accordance with its customary procedures).
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PAYMENT AND PAYING AGENCY
Payments in respect of the Exchange Capital Securities held in
global form shall be made to DTC, which shall credit the relevant accounts
at the Depositary on the applicable Distribution Dates, and payments in
respect of the Exchange Capital Securities that are not held by the
Depositary shall be made by check mailed to the address of the holder
entitled thereto as such address shall appear on the register. The paying
agent (the "Paying Agent") shall initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Corporation. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee, the Administrative Trustees and the Corporation. In the
event that the Property Trustee shall no longer be the Paying Agent, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company acceptable to the Administrative Trustees and the
Corporation) to act as Paying Agent.
RESTRICTIONS ON TRANSFER
The Exchange Capital Securities will be issued, and may be
transferred only, in blocks having a Liquidation Amount of not less than
$100,000 (100 Exchange Capital Securities). Any attempted transfer, sale or
other disposition of Exchange Capital Securities in a block having a
Liquidation Amount of less than $100,000 shall be deemed to be void and of
no legal effect whatsoever. Any such transferee shall be deemed not to be
the holder of such Exchange Capital Securities for any purpose, including
but not limited to the receipt of Distributions on such Exchange Capital
Securities, and such transferee shall be deemed to have no interest
whatsoever in such Exchange Capital Securities.
Bankers Trust Company has informed the Trust that so long as it
serves as paying agent for the Capital Securities, it anticipates that
information regarding Distributions on the Capital Securities, including
payment date, record date and redemption information, will be made
available through Bankers Trust Company at 1-800-735-7777.
RATING
The Exchange Capital Securities are expected to retain the "A+"
rating issued by Standard & Poor's Rating Services and the "a1" rating
issued by Moody's Investor Services, Inc. in respect of the Old Capital
Securities.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as registrar and transfer agent for
the Exchange Capital Securities.
Registration of transfers of the Exchange Capital Securities will
be effected without charge by or on behalf of the Trust, but upon payment
of any tax or other governmental charges that may be imposed in connection
with any transfer or exchange. The Trust will not be required to register
or cause to be registered the transfer of the Exchange Capital Securities
after they have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and
continuance of an Event of Default, undertakes to perform only such duties
as are specifically set forth in the Declaration and, during the existence
of an Event of Default, must exercise the same degree of care and skill as
a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the Property Trustee is under no
obligation to exercise any of the powers vested in it by the Declaration at
the request of any holder of Trust Securities unless it is offered
indemnity satisfactory to it against the costs, expenses and liabilities
that might be incurred thereby. If no Event of Default has occurred and is
continuing and the Property Trustee is required to decide between
alternative causes of action, construe ambiguous provisions in the
Declaration or is unsure of the application of any provision of the
Declaration, and the
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matter is not one on which holders of the Capital Securities or the Common
Securities are entitled under the Declaration to vote, then the Property
Trustee shall take such action as is directed by the Corporation and, if
not so directed, shall take such action as it deems advisable and in the
best interests of the holders of the Trust Securities and will have no
liability except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct
the affairs of and to operate the Trust in such a way that the Trust will
not be deemed to be an "investment company" required to be registered under
the Investment Company Act or classified as an association or a publicly
traded partnership taxable as a corporation for United States Federal
income tax purposes and so that the Junior Subordinated Debt Securities
will be treated as indebtedness of the Corporation for United States
Federal income tax purposes. In this connection, the Corporation and the
Administrative Trustees are authorized to take any action, not inconsistent
with applicable law, the certificate of trust of the Trust or the
Declaration, that the Corporation and the Administrative Trustees determine
in their discretion to be necessary or desirable for such purposes, as long
as such action does not materially adversely affect the interests of the
holders of the Trust Securities.
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The Old Junior Subordinated Debt Securities were issued and the
Exchange Junior Subordinated Debt Securities will be issued as a single
series under the Indenture. The Indenture has been qualified under the
Trust Indenture Act. This summary of certain terms and provisions of the
Junior Subordinated Debt Securities and the Indenture does not purport to
be complete, and where reference is made to particular provisions of the
Indenture, such provisions, including the definitions of certain terms,
some of which are not otherwise defined herein, are qualified in their
entirety by reference to all of the provisions of the Indenture and those
terms made a part of the Indenture by the Trust Indenture Act.
GENERAL
Concurrently with the issuance of the Old Capital Securities, the
Trust invested the proceeds thereof, together with the consideration paid
by the Corporation for the Common Securities, in the Old Junior
Subordinated Debt Securities issued by the Corporation. Pursuant to the
Exchange Offer, the Corporation will exchange the Old Junior Subordinated
Debt Securities for the Exchange Junior Subordinated Debt Securities as
soon as practicable after the date hereof. No Old Junior Subordinated Debt
Securities will remain outstanding after such exchange. The following is a
description of the Exchange Junior Subordinated Debt Securities (referred
to in this section as the "Junior Subordinated Debt Securities").
The Junior Subordinated Debt Securities will bear interest at
the annual rate of 7.75% of the principal amount thereof, payable
semi-annually in arrears on May 15 and November 15 of each year (each, an
"Interest Payment Date"), commencing May 15, 1997, to the person in whose
name each Junior Subordinated Debt Security is registered, subject to
certain exceptions, at the close of business on the Business Day next
preceding such Interest Payment Date. It is anticipated that, until the
liquidation of the Trust, each Junior Subordinated Debt Security will be in
the name of the Trust and will be held by the Property Trustee in trust for
the benefit of the holders of the Trust Securities. Notwithstanding the
registration of the Junior Subordinated Debt Securities under the
Securities Act, the Junior Subordinated Debt Securities may not be offered
for resale, resold or otherwise transferred by the Trust without further
compliance with the registration and prospectus delivery requirements of
the Securities Act. If the Junior Subordinated Debt Securities are
distributed to the holders of Capital Securities, however, the Trust and
the Corporation believe (based on existing interpretations by the staff of
the Commission) such holders would be permitted, subject to certain
limitations, to offer for resale, resell or transfer the Junior
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Subordinated Debt Securities without further compliance with the
registration and prospectus delivery requirements of the Securities Act.
See "The Exchange Offer - Resale of Exchange Capital Securities." The
amount of interest payable for any period will be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Junior Subordinated Debt Securities is not a
Business Day, then payment of the interest payable on such date will be
made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on the date such payment was
originally payable. Accrued interest that is not paid on the applicable
Interest Payment Date will bear additional interest on the amount thereof
(to the extent permitted by law) at the rate per annum of 7.75% thereof,
compounded semi-annually from the relevant Interest Payment Date. The term
"interest" as used herein shall include semi-annual interest payments and
interest on semi-annual interest payments not paid on the applicable
Interest Payment Date.
The Junior Subordinated Debt Securities will mature on November
15, 2026.
The Junior Subordinated Debt Securities will be unsecured and will
rank junior and be subordinate in right of payment to all Senior Debt of
the Corporation. Because the Corporation is a bank holding company, the
right of the Corporation to participate in any distribution of assets of
any subsidiary, including the Bank, upon such subsidiary's liquidation or
reorganization or otherwise (and thus the ability of holders of the Junior
Subordinated Debt Securities to benefit from such distribution), is subject
to the prior claims of creditors of such subsidiary, except to the extent
that the Corporation may itself be recognized as a creditor of such
subsidiary. Accordingly, the Junior Subordinated Debt Securities will be
subordinated to all Senior Debt and effectively subordinated to all
existing and future liabilities of the Corporation's subsidiaries, and
holders of Junior Subordinated Debt Securities should look only to the
assets of the Corporation for payments on the Junior Subordinated Debt
Securities. The Indenture does not limit the incurrence or issuance of
other secured or unsecured debt of the Corporation, including Senior Debt,
whether under the Indenture or any existing or other indenture that the
Corporation may enter into in the future or otherwise. See
"--Subordination."
The Junior Subordinated Debt Securities will rank pari passu with
all Other Debentures issued under the Indenture and will be unsecured and
subordinate and junior in right of payment to the extent and in the manner
set forth in the Indenture to all Senior Debt of the Corporation. See
"--Subordination." The Corporation is a non-operating holding company and
almost all of the operating assets of the Corporation and its consolidated
subsidiaries are owned by such subsidiaries. The Corporation relies
primarily on dividends from such subsidiaries to meet its obligations. The
Corporation is a legal entity separate and distinct from its banking and
non-banking affiliates. The Bank is the Corporation's principal asset and
source of revenue and net income. The Bank is subject to certain
restrictions imposed by federal law on any extensions of credit to, and
certain other transactions with, the Corporation and certain other
affiliates, and on investments in stock or other securities thereof. Such
restrictions prevent the Corporation and such other affiliates from
borrowing from the Bank unless the loans are secured by various types of
collateral. Further, such secured loans, other transactions and investments
by the Bank are generally limited in amount as to the Corporation and as to
each of such other affiliates to 10% of the Bank's capital and surplus and
as to the Corporation and all of such other affiliates to an aggregate of
20% of the Bank's capital and surplus. In addition, payment of dividends to
the Corporation by the Bank is subject to ongoing review by banking
regulators and is subject to various statutory limitations and in certain
circumstances requires approval by banking regulatory authorities. The
Other Debentures are issuable in one or more series pursuant to an
indenture supplemental to the Indenture or a resolution of the
Corporation's Board of Directors or a committee thereof.
DENOMINATIONS, REGISTRATION AND TRANSFER
The Junior Subordinated Debt Securities will be represented by one
or more global certificates registered in the name of Cede & Co. as the
nominee of DTC if, and only if, distributed to the holders of
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the Trust Securities. Until such time, the Junior Subordinated Debt
Securities will be registered in the name of the Trust and held by the
Property Trustee. Should the Junior Subordinated Debt Securities be
distributed to holders of the Trust Securities, beneficial interests in the
Junior Subordinated Debt Securities will be shown on, and transfers thereof
will be effected only through, records maintained by Participants in DTC.
Except as described below, Junior Subordinated Debt Securities in
certificated form will not be issued in exchange for the global
certificates.
A global security shall be exchangeable for Junior Subordinated
Debt Securities registered in the names of persons other than Cede & Co.
only if (i) DTC notifies the Corporation that it is unwilling or unable to
continue as a depositary for such global security and no successor
depositary shall have been appointed, or if at any time DTC ceases to be a
"clearing agency" registered under the Exchange Act, at a time when DTC is
required to be so registered to act as such depositary, (ii) the
Corporation in its sole discretion determines that such global security
shall be so exchangeable, or (iii) there shall have occurred and be
continuing a Debenture Event of Default. Any global security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
certificates registered in such names as DTC shall direct. It is expected
that such instructions will be based upon directions received by DTC from
its Participants with respect to ownership of beneficial interests in such
global security. In the event that Junior Subordinated Debt Securities are
issued in certificated form, such Junior Subordinated Debt Securities will
be in minimum denominations of $1,000 and integral multiples of $1,000 in
excess thereof and may be transferred or exchanged only in such minimum
denominations and in the manner and at the offices described below.
Payments on Junior Subordinated Debt Securities represented by a
global security will be made to DTC, as the depositary for the Junior
Subordinated Debt Securities. In the event Junior Subordinated Debt
Securities are issued in certificated form, principal and interest will be
payable, the transfer of the Junior Subordinated Debt Securities will be
registrable, and Junior Subordinated Debt Securities will be exchangeable
for Junior Subordinated Debt Securities of other denominations of a like
aggregate principal amount, at the corporate office of the Debenture
Trustee in New York, New York, or at the offices of any paying agent or
transfer agent appointed by the Corporation, provided that payment of
interest may be made at the option of the Corporation by check mailed to
the address of the persons entitled thereto or by wire transfer. In
addition, if the Junior Subordinated Debt Securities are issued in
certificated form, the record dates for payment of interest will be the 1st
day of the last month of each semi-annual period.
For a description of DTC and the terms of the depositary
arrangements relating to payments, transfers, voting rights, redemptions
and other notices and other matters, see "Description of the Exchange
Securities--Description of Capital Securities--Form, Denomination,
Book-Entry Procedures and Transfer." If the Junior Subordinated Debt
Securities are distributed to the holders of the Trust Securities upon the
termination of the Trust, the form, denomination, book-entry and transfer
procedures with respect to the Exchange Capital Securities, as described
under "Description of the Exchange Securities--Description of Capital
Securities--Form, Denomination, Book-Entry Procedures and Transfer," shall
apply to the Junior Subordinated Debt Securities mutatis mutandis.
PAYMENT AND PAYING AGENTS
Payment of principal of (and premium, if any) and any interest on
Junior Subordinated Debt Securities will be made at the office of the
Debenture Trustee in the City of New York or at the office of such Paying
Agent or Paying Agents as the Corporation may designate from time to time,
except that at the option of the Corporation payment of any interest may be
made (except in the case of Junior Subordinated Debt Securities in global
form), (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the register for Junior Subordinated Debt
Securities or (ii) by transfer to an account maintained by the person
entitled thereto as specified in such register, provided that proper
transfer instructions have been received by the relevant Record Date.
Payment of any interest on any Junior Subordinated Debt Security will be
made to the person in whose name such Junior Subordinated Debt Security is
registered at the close of business on the Record Date for such interest,
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except in the case of defaulted interest. The Corporation may at any time
designate additional Paying Agents or rescind the designation of any Paying
Agent; however the Corporation will at all times be required to maintain a
Paying Agent in each Place of Payment (as defined in the Indenture) for the
Junior Subordinated Debt Securities.
Any moneys deposited with the Debenture Trustee or any Paying
Agent, or then held by the Corporation in trust, for the payment of the
principal of (and premium, if any) or interest on any Junior Subordinated
Debt Security and remaining unclaimed for two years after such principal
(and premium, if any) or interest has become due and payable shall, at the
request of the Corporation, be repaid to the Corporation and the holder of
such Junior Subordinated Debt Security shall thereafter look, as a general
unsecured creditor, only to the Corporation for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Debenture Event of Default has occurred and is
continuing, the Corporation has the right under the Indenture to defer the
payment of interest at any time or from time to time for a period not
exceeding 10 consecutive semi-annual periods with respect to each Extension
Period; provided, however, that no Extension Period may end on a date other
than an Interest Payment Date or extend beyond the Stated Maturity of the
Junior Subordinated Debt Securities. At the end of an Extension Period, the
Corporation must pay all interest then accrued and unpaid on the Junior
Subordinated Debt Securities (together with interest thereon at the annual
rate of 7.75%, compounded semi-annually from the relevant Interest Payment
Date, to the extent permitted by applicable law). During an Extension
Period, interest will continue to accrue and holders of Junior Subordinated
Debt Securities (and holders of the Capital Securities while Capital
Securities are outstanding) will be required to accrue interest income for
United States Federal income tax purposes. See "Certain United States
Federal Income Tax Consequences--Interest Income and Original Issue
Discount."
During any Extension Period, the Corporation may not (i)
declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock (which includes common and preferred stock),
(ii) make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Corporation
(including any Other Debentures) that rank pari passu in all respects with
or junior in interest to the Junior Subordinated Debt Securities or (iii)
make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the Corporation
(including any Other Guarantees) if such guarantee ranks pari passu in all
respects with or junior in interest to the Junior Subordinated Debt
Securities (other than (a) dividends or distributions in common stock of
the Corporation, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any
such rights pursuant thereto, (c) payments under the Guarantee, (d)
purchases or acquisitions of shares of the Corporation's common stock in
connection with the satisfaction by the Corporation of its obligations
under any employee benefit plan or any other contractual obligation of the
Corporation (other than a contractual obligation ranking pari passu in all
respects with or junior to the Junior Subordinated Debt Securities), (e) as
a result of a reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the Corporation's capital
stock for another class or series of the Corporation's capital stock or (f)
the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged). Prior to the
termination of any Extension Period, the Corporation may further extend
such Extension Period; provided, however, that such extension does not
cause such Extension Period to exceed 10 consecutive semi-annual periods,
to end on a date other than an interest Payment Date or to extend beyond
the Stated Maturity. Upon the termination of any Extension Period and the
payment of all interest then accrued and unpaid on the Junior Subordinated
Debt Securities (together with interest thereon at the annual rate of
7.75%, compounded semi-annually, to the extent permitted by applicable
law), the Corporation may elect to begin a new Extension Period, subject to
the above requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof.
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The Corporation must give the Property Trustee, the Administrative Trustees
and the Debenture Trustee notice of its election of any Extension Period
(or an extension thereof) at least five Business Days prior to the earlier
of (i) the date the Distributions on the Trust Securities would have been
payable except for the election to begin or extend such Extension Period or
(ii) the date the Administrative Trustees are required to give notice to
any automated quotation system or to holders of Capital Securities of the
record date or the date such Distributions are payable, but in any event
not less than five Business Days prior to such record date. The Debenture
Trustee shall give notice of the Corporation's election to begin or extend
a new Extension Period to the holders of the Capital Securities. There is
no limitation on the number of times that the Corporation may elect to
begin an Extension Period.
OPTIONAL REDEMPTION
The Junior Subordinated Debt Securities will be redeemable, in
whole or in part, at the option of the Corporation at any time prior to
maturity on or after November 15, 2006, subject to the Corporation having
received prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve, at a
redemption price (the "Optional Prepayment Price") equal to the following
prices, expressed in percentages of the principal amount of the Junior
Subordinated Debt Securities together with accrued but unpaid interest to
but excluding the date fixed for redemption. If redeemed during the
12-month period beginning November 15:
Redemption
Year Price
2006 103.660%
2007 103.294
2008 102.928
2009 102.562
2010 102.196
2011 101.830
2012 101.464
2013 101.098
2014 100.732
2015 100.366
and at 100% on or after November 15, 2016.
TAX EVENT PREPAYMENT
If a Tax Event shall occur and be continuing, the Corporation
may, at its option and subject to receipt of prior approval of the Federal
Reserve if then required under applicable capital guidelines or policies of
the Federal Reserve, terminate the Trust and distribute the Junior
Subordinated Debt Securities to the holders of the Trust Securities at any
time within 90 days of the occurrence of such Tax Event and, if such Tax
Event continues notwithstanding the taking of such actions, to prepay the
Junior Subordinated Debt Securities in whole (but not in part) at a
prepayment price (the "Tax Event Prepayment Price") equal to 100% of the
principal amount of such Junior Subordinated Debt Securities plus accrued
interest thereon to the date of prepayment. See "Description of the
Exchange Securities--Description of Capital Securities--Liquidation of the
Trust and Distribution of Junior Subordinated Debt Securities."
"Tax Event" means the receipt by the Corporation of an opinion
of counsel experienced in such matters to the effect that, as a result of
any amendment to, or change (including any announced proposed change) in,
the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or
change is effective or which proposed change, pronouncement or decision is
announced on or after the date the Old Junior
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Subordinated Debt Securities were issued, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the
date of such opinion, subject to United States Federal income tax with
respect to income received or accrued on the Junior Subordinated Debt
Securities, (ii) interest payable by the Corporation on the Junior
Subordinated Debt Securities is not, or within 90 days of the date of such
opinion, will not be, deductible by the Corporation, in whole or in part,
for United States Federal income tax purposes or (iii) the Trust is, or
will be within 90 days of the date of such opinion, subject to more than a
de minimis amount of other taxes, duties or other governmental charges.
Notice of any redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each holder of Junior
Subordinated Debt Securities at its registered address. Unless the
Corporation defaults in payment of the Tax Event Prepayment Price, on and
after the prepayment date interest shall cease to accrue on the Junior
Subordinated Debt Securities.
RESTRICTIONS ON CERTAIN PAYMENTS
The Corporation also covenanted that it will not (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make
a liquidation payment with respect to, any of the Corporation's capital
stock (which includes common and preferred stock),(ii) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem
any debt securities of the Corporation (including Other Debentures) that
rank pari passu in all respects with or junior in interest to the Junior
Subordinated Debt Securities or (iii) make any guarantee payments with
respect to any guarantee by the Corporation of the debt securities of any
subsidiary of the Corporation (including under Other Guarantees) if such
guarantee ranks pari passu in all respects with or junior in interest to
the Junior Subordinated Debt Securities (other than (a) dividends or
distributions in common stock of the Corporation, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments
under the Guarantee, (d) purchases or acquisitions of shares of the
Corporation's common stock in connection with the satisfaction by the
Corporation of its obligations under any employee benefit plan or any other
contractual obligation of the Corporation (other than a contractual
obligation ranking pari passu in all respects with or junior to the Junior
Subordinated Debt Securities), (e) as a result of a reclassification of the
Corporation's capital stock or the exchange or conversion of one class or
series of the Corporation's capital stock for another class or series of
the Corporation's capital stock or (f) the purchase of fractional interests
in shares of the Corporation's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted
or exchanged) if at such time (i) there shall have occurred a Debenture
Event of Default, (ii) the Corporation shall be in default with respect to
its payment of any obligations under the Guarantee or (iii) the Corporation
shall have given notice of its election of an Extension Period as provided
in the Indenture and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing.
MODIFICATION OF INDENTURE
From time to time the Corporation and the Debenture Trustee may,
without the consent of the holders of Junior Subordinated Debt Securities,
amend, waive or supplement the Indenture for specified purposes, including,
among other things, curing ambiguities, defects or inconsistencies
(provided that any such action does not materially adversely affect the
interest of the holders of Junior Subordinated Debt Securities or the
holders of the Capital Securities so long as they remain outstanding) and
qualifying, or maintaining the qualification of, the Indenture under the
Trust Indenture Act. The Indenture contains provisions permitting the
Corporation and the Debenture Trustee, with the consent of the holders of
not less than a majority in principal amount of Junior Subordinated Debt
Securities, to modify the Indenture in a manner affecting the rights of the
holders of Junior Subordinated Debt Securities; provided, however, that no
such modification may, without the consent of the holder of each
outstanding Junior Subordinated Debt Security so affected, (i) change the
Stated Maturity, or reduce the principal amount of the Junior Subordinated
Debt Securities, or reduce the rate or extend the time of payment of
interest thereon or (ii)
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reduce the percentage of principal amount of Junior Subordinated Debt
Securities, the holders of which are required to consent to any such
modification of the Indenture.
In addition, the Corporation and the Debenture Trustee may
execute, without the consent of any holder of Junior Subordinated Debt
Securities, any supplemental Indenture for the purpose of creating any
Other Debentures.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following
described events with respect to the Junior Subordinated Debt Securities
that has occurred and is continuing constitutes a "Debenture Event of
Default":
(i) failure for 30 days to pay any interest on the Junior Subordinated
Debt Securities when due (subject to the deferral of any due date in the
case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on the Junior
Subordinated Debt Securities when due, whether at maturity, upon
redemption, by declaration of acceleration or otherwise; or
(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written notice
to the Corporation from the Debenture Trustee or the holders of at least
25% in aggregate outstanding principal amount of the Junior Subordinated
Debt Securities; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Corporation; or
(v) the voluntary or involuntary dissolution, winding-up or
termination of the Trust, except in connection with the distribution of the
Junior Subordinated Debt Securities to the holders of Trust Securities in
liquidation of the Trust, the redemption of all of the Trust Securities of
the Trust, or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration.
The holders of a majority in aggregate outstanding principal
amount of the Junior Subordinated Debt Securities have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee. The Debenture Trustee or the holders of
not less than 25% in aggregate outstanding principal amount of the Junior
Subordinated Debt Securities may declare the principal due and payable
immediately upon a Debenture Event of Default and, should the Debenture
Trustee or such holders of Junior Subordinated Debt Securities fail to make
such declaration, the holders of at least 25% in aggregate Liquidation
Amount of the Capital Securities shall have such right. The holders of a
majority in aggregate outstanding principal amount of the Junior
Subordinated Debt Securities may annul such declaration and waive the
default if the default (other than the non-payment of the principal of the
Junior Subordinated Debt Securities which has become due solely by such
acceleration) has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration
has been deposited with the Debenture Trustee. Should the holders of Junior
Subordinated Debt Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
Capital Securities shall have such right.
The holders of a majority in aggregate outstanding principal
amount of the Junior Subordinated Debt Securities affected thereby may, on
behalf of the holders of all the Junior Subordinated Debt Securities, waive
any past default, except a default in the payment of principal or interest
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration
has been deposited with the Debenture Trustee) or a default in respect of a
covenant or provision which under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding Junior
Subordinated Debt Security. Should the holders of such Junior Subordinated
Debt Securities fail to annul such declaration and waive such default, the
holders of a majority in aggregate Liquidation Amount of the Capital
Securities shall have such right.
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The Corporation is required to file annually with the Debenture Trustee a
certificate as to whether or not the Corporation is in compliance with all
the conditions and covenants applicable to it under the Indenture.
In case a Debenture Event of Default shall occur and be
continuing, the Property Trustee will have the right to declare the
principal of and the interest on the Junior Subordinated Debt Securities,
and any other amounts payable under the Indenture, to be forthwith due and
payable and to enforce its other rights as a creditor with respect to the
Junior Subordinated Debt Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default has occurred and is continuing and
such event is attributable to the failure of the Corporation to pay
interest or principal on the Junior Subordinated Debt Securities on the
date such interest or principal is otherwise payable, a holder of Capital
Securities may institute a Direct Action. The Corporation may not amend the
Indenture to remove the foregoing right to bring a Direct Action without
the prior written consent of the holders of all of the Capital Securities.
If the right to bring a Direct Action is removed following the Exchange
Offer, the Trust may become subject to the reporting obligations under the
Securities Exchange Act of 1934, as amended. Notwithstanding any payments
made to a holder of Capital Securities by the Corporation in connection
with a Direct Action, the Corporation shall remain obligated to pay the
principal of or interest on the Junior Subordinated Debt Securities, and
the Corporation shall be subrogated to the rights of the holder of such
Capital Securities with respect to payments on the Capital Securities to
the extent of any payments made by the Corporation to such holder in any
Direct Action.
The holders of the Capital Securities will not be able to
exercise directly any remedies, other than those set forth in the preceding
paragraph, available to the holders of the Junior Subordinated Debt
Securities unless there shall have been an Event of Default under the
Declaration. See "Description of the Exchange Securities--Description of
Capital Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Corporation shall not consolidate
with or merge with or into any other Person or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, and
no Person shall consolidate with or merge with or into the Corporation or
convey, transfer or lease its properties and assets substantially as an
entirety to the Corporation, unless (i) in case the Corporation
consolidates with or merges with or into another Person or conveys or
transfers its properties and assets substantially as an entirety to any
Person, the successor Person is organized under the laws of the United
States or any state or the District of Columbia, and such successor Person
expressly assumes the Corporation's obligations on the Junior Subordinated
Debt Securities;(ii) immediately after giving effect thereto, no Debenture
Event of Default, and no event which, after notice or lapse of time or
both, would become a Debenture Event of Default, shall have occurred and be
continuing; (iii) such transaction is permitted under the Declaration and
the Guarantee and does not give rise to any breach or violation of the
Declaration or the Guarantee; and (iv) certain other conditions as
prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders of
the Junior Subordinated Debt Securities protection in the event of a highly
leveraged or other transaction involving the Corporation that may adversely
affect holders of the Junior Subordinated Debt Securities.
SUBORDINATION
In the Indenture, the Corporation has covenanted and agreed that
any Junior Subordinated Debt Securities issued thereunder shall be
subordinate and junior in right of payment to all Senior Debt to the extent
provided in the Indenture. Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any
bankruptcy, insolvency, debt restructuring or similar proceedings in
connection with any
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insolvency or bankruptcy proceeding of the Corporation, the holders of
Senior Debt will first be entitled to receive payment in full of principal
of (and premium, if any) and interest, if any, on such Senior Debt before
the holders of Junior Subordinated Debt Securities will be entitled to
receive or retain any payment or distribution in respect thereof; provided,
however, that holders of Senior Debt shall not be entitled to receive
payment of any such amounts to the extent that such holders would be
required by the subordination provisions of such Senior Debt to pay such
amounts over to the obligees on trade accounts payable or other liabilities
arising in the ordinary course of business.
In the event of the acceleration of the maturity of the Junior
Subordinated Debt Securities, the holders of all Senior Debt outstanding at
the time of such acceleration will first be entitled to receive payment in
full of all amounts due thereon (including any amounts due upon
acceleration) before the holders of the Junior Subordinated Debt Securities
will be entitled to receive or retain any payment in respect of the
principal of (or premium, if any) or interest, if any, on the Junior
Subordinated Debt Securities; provided, however, that holders of Senior
Debt shall not be entitled to receive payment of any such amounts to the
extent that such holders would be required by the subordination provisions
of such Senior Debt to pay such amounts over to the obligees on trade
accounts payable or other liabilities arising in the ordinary course of
business.
In the event that the Corporation shall default in the payment of
any principal, premium, if any, or interest, if any, on any Senior Debt
when the same becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration of acceleration or otherwise, then,
unless and until such default shall have been cured or waived or shall have
ceased to exist or all Senior Debt shall have been paid, no direct or
indirect payment (in cash, property, securities, by set-off or otherwise)
shall be made or agreed to be made for principal, premium, if any, or
interest, if any, on the Junior Subordinated Debt Securities, or in respect
of any redemption, repayment, retirement, purchase or other acquisition of
any of the Junior Subordinated Debt Securities.
"Debt" means (i) the principal of and premium, if any, and unpaid
interest on indebtedness for money borrowed, (ii) purchase money and
similar obligations, (iii) obligations under capital leases, (iv)
guarantees, assumptions or purchase commitments relating to, or other
transactions as a result of which the Corporation is responsible for the
payment of such indebtedness of others, (v) renewals, extensions and
refunding of any such indebtedness, (vi) interest or obligations in respect
of any such indebtedness accruing after the commencement of any insolvency
or bankruptcy proceedings and (vii) obligations associated with derivative
products such as interest rate and currency exchange contracts, foreign
exchange contracts, commodity contracts and similar arrangements.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Corporation
whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt of the Corporation, whether incurred on or prior to
the date of the Indenture or thereafter incurred, unless, in the instrument
creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are not superior in right
of payment to the Junior Subordinated Debt Securities or the Other
Debentures; provided, however, that Senior Debt shall not be deemed to
include (i) any Debt of the Corporation which when incurred and without
respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, was without recourse to the
Corporation, (ii) any Debt of the Corporation to any of its subsidiaries,
(iii) Debt to any employee of the Corporation, (iv) Debt which by its terms
is subordinated to trade accounts payable or accrued liabilities arising in
the ordinary course of business to the extent that payments made to the
holders of such Debt by the holders of the Junior Subordinated Debt
Securities as a result of the subordination provisions of the Indenture
would be greater than such payments otherwise would have been as a result
of any obligation of such holders of such Debt to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in
the ordinary course of business as a result of subordination provisions to
which such Debt is subject; and (v) any other debt securities issued
pursuant to the Indenture.
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The Indenture places no limitation on the amount of Senior Debt that
may be incurred by the Corporation. The Corporation expects from time to
time to incur additional indebtedness constituting Senior Debt.
RESTRICTIONS ON TRANSFER
The Junior Subordinated Debt Securities will be issued, and may be
transferred only, in minimum denominations of not less than $1,000 and
multiples of $1,000 in excess thereof. Any transfer, sale or other
disposition of Junior Subordinated Debt Securities in a denomination of
less than $1,000 shall be deemed to be void and of no legal effect
whatsoever. Any such transferee shall be deemed not to be the holder of
such Junior Subordinated Debt Securities for any purpose, including but not
limited to the receipt of payments on such Junior Subordinated Debt
Securities, and such transferee shall be deemed to have no interest
whatsoever in such Junior Subordinated Debt Securities.
GOVERNING LAW
The Indenture and the Junior Subordinated Debt Securities will be
governed by and construed in accordance with the laws of the State of New
York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee is subject to all the duties and
responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Debenture Trustee is
under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Junior Subordinated Debt
Securities, unless offered indemnity satisfactory to it by such holder
against the costs, expenses and liabilities which might be incurred
thereby. The Debenture Trustee is not required to expend or risk its own
funds or otherwise incur personal financial liability in the performance of
its duties if the Debenture Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it.
DESCRIPTION OF GUARANTEE
The Old Guarantee was executed and delivered by the Corporation
concurrently with the issuance by the Trust of the Old Capital Securities
for the benefit of the holders from time to time of the Old Capital
Securities and the Common Securities. As soon as practicable after the date
hereof, the Old Guarantee will be exchanged by the Corporation for the
Exchange Guarantee. The Old Guarantee shall be of no force and effect after
such exchange. This summary of certain provisions of the Exchange Guarantee
does not purport to be complete and is subject to, and qualified in its
entirety by reference to, all of the provisions of the Exchange Guarantee,
including the definitions therein of certain terms, and the Trust Indenture
Act. The Guarantee Trustee will hold the Exchange Guarantee for the benefit
of the holders of the Exchange Capital Securities, the Old Capital
Securities and the Common Securities. References in this section to the
"Guarantee" shall be deemed to refer to the Exchange Guarantee.
GENERAL
The Corporation will irrevocably agree to pay in full on a
subordinated basis, to the extent set forth herein, the Guarantee Payments
(as defined herein) to the holders of the Trust Securities, as and when
due, regardless of any defense, right of set-off or counterclaim that the
Trust may have or assert other than the defense of payment. The following
payments with respect to the Trust Securities, to the extent not paid by or
on behalf of the Trust (the "Guarantee Payments"), will be subject to the
Guarantee: (i) any accrued and unpaid Distributions required to be paid on
the Trust Securities, to the extent that the Trust has funds on hand
available therefor
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at such time, (ii) the applicable Redemption Price with respect to Trust
Securities called for redemption, to the extent that the Trust has funds on
hand available therefor at such time, or (iii) upon a voluntary or
involuntary dissolution, winding up or liquidation of the Trust (other than
in connection with the distribution of Junior Subordinated Debt Securities
to the holders of the Trust Securities or the redemption of all of the
Trust Securities) the lesser of (a) the Liquidation Distribution, to the
extent the Trust has funds available therefor, and (b) the amount of assets
of the Trust remaining available for distribution to holders of the Trust
Securities upon liquidation of the Trust after satisfaction of liabilities
to creditors of the Trust as required by applicable law. The Corporation's
obligation to make a Guarantee Payment may be satisfied by direct payment
of the required amounts by the Corporation to the holders of the Trust
Securities or by causing the Trust to pay such amounts to such holders.
The Guarantee will be an irrevocable guarantee on a subordinated
basis of the Trust's obligations under the Capital Securities, although it
will apply only to the extent that the Trust has funds sufficient to make
such payments, and is not a guarantee of collection. If the Corporation
does not make interest payments on the Junior Subordinated Debt Securities
held by the Trust, the Trust will not be able to pay Distributions on the
Capital Securities and will not have funds legally available therefor.
The Guarantee will rank subordinate and junior in right of payment
to all Senior Debt. See "--Status of the Guarantee." Because the
Corporation is a holding company, the right of the Corporation to
participate in any distribution of assets of any subsidiary, upon such
subsidiary's liquidation or reorganization or otherwise, is subject to the
prior claims of creditors of such subsidiary, except to the extent the
Corporation may itself be recognized as a creditor of that subsidiary.
Accordingly, the Corporation's obligations under the Guarantee will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and claimants should look only to the assets of
the Corporation for payments thereunder. See "Republic New York
Corporation." The Guarantee will not limit the incurrence or issuance of
other secured or unsecured debt of the Corporation, including Senior Debt,
whether under the Indenture, any other indenture that the Corporation may
enter into in the future or otherwise.
The Corporation has, through the Guarantee, the Declaration, the
Junior Subordinated Debt Securities and the Indenture, taken together,
fully, irrevocably and unconditionally guaranteed all of the Trust's
obligations under the Capital Securities. No single document standing alone
or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Trust's obligations under the Capital
Securities. See "Relationship Among the Capital Securities, the Junior
Subordinated Debt Securities and the Guarantee."
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the
Corporation and will rank subordinate and junior in right of payment to all
Senior Debt in the same manner as Junior Subordinated Debt Securities.
The Guarantee will rank pari passu with all Other Guarantees
issued by the Corporation. The Guarantee will constitute a guarantee of
payment and not of collection (i.e., the guaranteed party may institute a
legal proceeding directly against the Corporation to enforce its rights
under the Guarantee without first instituting a legal proceeding against
any other person or entity). The Guarantee will be held for the benefit of
the holders of the Capital Securities and the Common Securities. The
Guarantee will not be discharged except by payment of the Guarantee
Payments in full to the extent not paid by the Trust or upon distribution
of the Junior Subordinated Debt Securities to the holders of the Trust
Securities. The Guarantee will not place a limitation on the amount of
additional Senior Debt that may be incurred by the Corporation. The
Corporation expects from time to time to incur additional indebtedness
constituting Senior Debt.
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AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially
adversely affect the rights of holders of the Capital Securities (in which
case no vote will be required), the Guarantee may not be amended without
the prior approval of the holders of not less than a majority of the
aggregate Liquidation Amount of such outstanding Capital Securities. The
manner of obtaining any such approval will be as set forth under
"Description of the Exchange Securities--Description of Capital
Securities--Voting Rights; Amendment of the Declaration." All guarantees
and agreements contained in the Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Corporation and
shall inure to the benefit of the holders of the Capital Securities then
outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the
failure of the Corporation to perform any of its payment or other
obligations thereunder; provided, however, that except with respect to a
default in payment of any Guarantee Payment, the Corporation shall have
received notice of default and shall not have cured such default within 60
days after receipt of such notice. The holders of not less than a majority
in aggregate Liquidation Amount of the Capital Securities have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee in respect of the Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee
Trustee under the Guarantee.
Any holder of the Capital Securities may institute a legal
proceeding directly against the Corporation to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust or
any other person or entity.
The Corporation, as guarantor, is required to file annually with
the Guarantee Trustee a certificate as to whether or not the Corporation is
in compliance with all the conditions and covenants applicable to it under
the Guarantee.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Guarantee will provide that the Corporation shall not
consolidate with or merge with or into any other Person or convey, transfer
or lease its properties and assets substantially as an entirety to any
Person, and no Person shall consolidate with or merge with or into the
Corporation or convey, transfer or lease its properties and assets
substantially as an entirety to the Corporation, unless (i) in case the
Corporation consolidates with or merges with or into another Person or
conveys or transfers its properties and assets substantially as an entirety
to any Person, the successor Person is organized under the laws of the
United States or any state or the District of Columbia and such successor
Person expressly assumes the Corporation's obligations on the Guarantee;
(ii) immediately after giving effect thereto, no event of default under the
Guarantee, and no event which, after notice or lapse of time or both, would
become an event of default under the Guarantee, shall have happened and be
continuing; (iii) such transaction is permitted under the Declaration and
the Indenture and does not give rise to any breach or violation of the
Declaration or the Indenture; and (iv) certain other conditions as
prescribed in the Guarantee are met.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Corporation in performance of the
Guarantee, undertakes to perform only such duties as are specifically set
forth in the Guarantee and, after default with respect to the Guarantee,
must exercise the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Guarantee Trustee is under no obligation to exercise any of
the powers vested in it by the Guarantee at the request of any holder of
the Capital Securities unless it is offered indemnity satisfactory to it
against the costs, expenses and liabilities that might be incurred thereby.
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TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and
effect upon full payment of the applicable Redemption Price of the Trust
Securities, upon full payment of the amounts payable upon liquidation of
the Trust or upon distribution of Junior Subordinated Debt Securities to
the holders of the Trust Securities. The Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any
holder of the Trust Securities must restore payment of any sums paid under
the Trust Securities or the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with
the laws of the State of New York.
DESCRIPTION OF THE OLD SECURITIES
The terms of the Old Securities are identical in all material
respects to the Exchange Securities, except that (i) the Old Securities
have not been registered under the Securities Act, are subject to certain
restrictions on transfer and are entitled to certain rights under the
Registration Agreement (which rights will terminate upon consummation of
the Exchange Offer, except under limited circumstances); (ii) the Exchange
Capital Securities will not provide for any increase in the Distribution
rate thereon; and (iii) the Exchange Junior Subordinated Debt Securities
will not provide for any increase in the interest rate thereon. The Old
Securities provide under certain circumstances specified in the
Registration Agreement that interest on the principal amount of the Junior
Subordinated Debt Securities and Distributions on the Liquidation Amount of
the Capital Securities will accrue at an increased rate. The Exchange
Securities are not, and upon consummation of the Exchange Offer the Old
Securities will not be, entitled to any such additional Distributions or
interest.
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE
JUNIOR SUBORDINATED DEBT SECURITIES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital
Securities (to the extent the Trust has funds available for the payment
thereof) are irrevocably guaranteed by the Corporation as and to the extent
set forth under "Description of Guarantee." Taken together, the
Corporation's obligations under the Junior Subordinated Debt Securities,
the Indenture, the Declaration and the Guarantee provide, in the aggregate,
a full, irrevocable and unconditional guarantee of payments of
Distributions and other amounts due on the Capital Securities. No single
document standing alone or operating in conjunction with fewer than all of
the other documents constitutes such guarantee. It is only the combined
operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the Trust's obligations under
the Capital Securities. If and to the extent that the Corporation does not
make payments on the Junior Subordinated Debt Securities, the Trust will
not pay Distributions or other amounts due on the Capital Securities. The
Guarantee does not cover payment of Distributions when the Trust does not
have sufficient funds to pay such Distributions. In such event, the remedy
of a holder of Capital Securities is to institute a Direct Action. The
obligations of the Corporation under the Guarantee are subordinate and
junior in right of payment to all Senior Debt.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other amounts are made when
due on the Junior Subordinated Debt Securities, such payments will be
sufficient to cover Distributions and other payments
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due on the Trust Securities, primarily because (i) the aggregate principal
amount or Prepayment Price of the Junior Subordinated Debt Securities is
equal to the sum of the aggregate Liquidation Amount or Redemption Price,
as applicable, of the Trust Securities; (ii) the interest rate and interest
and other payment dates on the Junior Subordinated Debt Securities match
the Distribution rate and Distribution and other payment dates for the
Capital Securities; (iii) the Corporation shall pay for all costs, expenses
and liabilities of the Trust except the Trust's obligations to holders of
Trust Securities under such Trust Securities; and (iv) the Declaration
provides that the Trust will not engage in any activity that is not
consistent with the limited purposes thereof.
ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any Capital Security may institute a legal proceeding
directly against the Corporation to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Guarantee Trustee,
the Trust or any other person or entity.
A default or event of default under any Senior Debt would not
constitute a default or Event of Default under the Declaration. However, in
the event of payment defaults under, or acceleration of, Senior Debt, the
subordination provisions of the Indenture provide that no payments may be
made in respect of the Junior Subordinated Debt Securities until such
Senior Debt has been paid in full or any payment default thereunder has
been cured or waived. Failure to make required payments on Junior
Subordinated Debt Securities would constitute an Event of Default under the
Declaration.
LIMITED PURPOSE OF THE TRUST
The Capital Securities evidence a beneficial interest in the
Trust, and the Trust exists for the sole purposes of (i) issuing the Trust
Securities and effecting the Exchange Offer for the Exchange Capital
Securities, (ii) investing the proceeds of the Old Capital Securities and
the Common Securities in the Old Junior Subordinated Debt Securities, (iii)
exchanging the Junior Subordinated Debt Securities for the Exchange
Subordinated Debt Securities in the Exchange Offer and (iv) engaging in
other activities necessary, advisable or incidental thereto. A principal
difference between the rights of a holder of a Capital Security and a
holder of a Junior Subordinated Debt Security is that a holder of a Junior
Subordinated Debt Security is entitled to receive from the Corporation the
principal amount of and interest accrued on Junior Subordinated Debt
Securities held, while a holder of Capital Securities is entitled to
receive Distributions from the Trust (or from the Corporation under the
Guarantee) if and to the extent the Trust has funds available for the
payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or
liquidation of the Trust involving the liquidation of the Junior
Subordinated Debt Securities, after satisfaction of the liabilities of
creditors of the Trust as required by applicable law, the holders of the
Trust Securities will be entitled to receive, out of assets held by the
Trust, the Liquidation Distribution in cash. See "Description of the
Exchange Securities--Description of Capital Securities--Liquidation of the
Trust and Distribution of Junior Subordinated Debt Securities." Upon any
voluntary or involuntary liquidation or bankruptcy of the Corporation, the
Property Trustee, as holder of the Junior Subordinated Debt Securities,
would be a subordinated creditor of the Corporation, subordinated in right
of payment to all Senior Debt as set forth in the Indenture, but entitled
to receive payment in full of principal and interest before any
stockholders of the Corporation receive payments or distributions. Since
the Corporation is the guarantor under the Guarantee and has agreed to pay
for all costs, expenses and liabilities of the Trust (other than the
Trust's obligations to the holders of its Trust Securities), the positions
of a holder of Capital Securities and a holder of Junior Subordinated Debt
Securities relative to other creditors and to stockholders of the
Corporation in the event of liquidation or bankruptcy of the Corporation
are expected to be substantially the same.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Simpson Thacher & Bartlett, special United
States Federal income tax counsel to the Corporation and the Trust ("Tax
Counsel"), the following summary accurately describes the material United
States Federal income tax consequences that may be relevant to the
purchase, ownership and disposition of Capital Securities. Unless otherwise
stated, this summary deals only with Capital Securities held as capital
assets by United States Holders (defined below) who purchased the Old
Capital Securities upon original issuance at their original offering price.
As used herein, a "United States Holder" means (i) a person that is a
citizen or resident of the United States, (ii) a corporation, partnership
or other entity created or organized in or under the laws of the United
States or any political subdivision thereof, (iii) an estate the income of
which is subject to United States Federal income taxation regardless of its
source, or (iv) any trust if a court within the United States is able to
exercise primary supervision over the administration of such trust and one
or more United States fiduciaries have the authority to control all the
substantial decisions of such trust. The tax treatment of a holder may vary
depending on his, her or its particular situation. This summary does not
address all the tax consequences that may be relevant to a particular
holder or to holders who may be subject to special tax treatment, such as
banks, real estate investment trusts, regulated investment companies,
insurance companies, dealers in securities or currencies, or tax-exempt
investors. In addition, this summary does not include any description of
any alternative minimum tax consequences or the tax laws of any state,
local or foreign government that may be applicable to a holder of Capital
Securities. This summary is based on the Internal Revenue Code of 1986, as
amended, the Treasury regulations promulgated thereunder and administrative
and judicial interpretations thereof, as of the date hereof, all of which
are subject to change, possibly on a retroactive basis. The authorities on
which this summary is based are subject to various interpretations and the
opinions of Tax Counsel are not binding on the Internal Revenue Service or
the courts, either of which could take a contrary position. Moreover, no
rulings have been or will be sought from the IRS with respect to the
transactions described herein. Accordingly, there can be no assurance that
the IRS will not challenge the opinions expressed herein or that a court
would not sustain such a challenge. Nevertheless, Tax Counsel has advised
that it is of the view that, if challenged, the opinions expressed herein
would be sustained by a court with jurisdiction in a properly presented
case.
HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE
TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
CAPITAL SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN, AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED
STATES FEDERAL OR OTHER TAX LAWS. FOR A DISCUSSION OF THE POSSIBLE
REDEMPTION OF THE CAPITAL SECURITIES UPON THE OCCURRENCE OF CERTAIN TAX
EVENTS SEE "DESCRIPTION OF THE EXCHANGE SECURITIES--DESCRIPTION OF CAPITAL
SECURITIES--LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR
SUBORDINATED DEBT SECURITIES."
EXCHANGE OF CAPITAL SECURITIES
The Exchange will not be a taxable event for United States
Federal income tax purposes. Consequently, no gain or loss will be
recognized by a holder upon the receipt of Exchange Capital Securities in
exchange for their Old Capital Securities, and such holder will have the
same adjusted tax basis and holding period in the Exchange Capital
Securities as the holder had in its Old Capital Securities immediately
before such exchange.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the Capital Securities, Tax
Counsel is of the opinion that under current law and assuming full
compliance with the terms of the Declaration and other documents, and based
upon certain facts and assumptions contained in such opinion, the Trust
will be classified as a grantor trust for United States Federal income tax
purposes and not as an association taxable as a corporation. Accordingly,
for United States Federal income tax purposes, each holder of Capital
Securities generally will be considered the owner of an undivided interest
in the Junior Subordinated Debt Securities and, thus, will be required to
include in its gross income its allocable share of income on
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the Junior Subordinated Debt Securities.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
The Corporation, the Trust and the holders of the Capital
Securities (by acceptance of a beneficial interest in a Capital Security)
will agree to treat the Junior Subordinated Debt Securities as indebtedness
for all United States tax purposes. In connection with the issuance of the
Junior Subordinated Debt Securities, Tax Counsel is of the opinion that,
under current law, and based on certain representations, facts and
assumptions set forth in such opinion, the Junior Subordinated Debt
Securities will be classified as indebtedness for United States Federal
income tax purposes.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under the applicable Treasury regulations, the Junior Subordinated
Debt Securities will not be treated as issued with OID within the meaning
of Section 1273(a) of the Code. Accordingly, except as set forth below,
stated interest on the Junior Subordinated Debt Securities generally will
be taxable to a holder as ordinary income at the time it is paid or accrued
in accordance with such holder's regular method of tax accounting.
If, however, the Corporation exercises its right to defer payments
of interest on the Junior Subordinated Debt Securities, the Junior
Subordinated Debt Securities will become OID instruments at such time and
the holders of the Junior Subordinated Debt Securities and, consequently,
holders of the Capital Securities will be required to accrue their pro rata
share of OID (which will include both the stated interest and the de
minimus OID on the Junior Subordinated Debt Securities)on a daily basis
during the Extension Period even though the Corporation will not pay such
interest until the end of the Extension Period, and even though some
holders may use the cash method of tax accounting. Moreover, thereafter the
Junior Subordinated Debt Securities will be taxed as OID instruments for as
long as they remain outstanding. Thus, even after the end of an Extension
Period, all holders would be required to continue to include their pro rata
share of OID on the Junior Subordinated Debt Securities in income on a
daily basis, regardless of their method of tax accounting and in advance of
the receipt of the cash attributable to such interest income. Under the OID
economic accrual rules, a holder would accrue an amount of interest income
each year that approximates the stated interest payments called for under
the terms of the Junior Subordinated Debt Securities, and actual cash
payments of interest on the Junior Subordinated Debt Securities would not
be reported separately as taxable income. Any amount of OID included in a
holder's gross income (whether or not during an Extension Period) with
respect to a Capital Security will increase such holder's tax basis in such
Capital Security, and the amount of Distributions received by a holder in
respect of such accrued OID will reduce the tax basis of such Capital
Security.
The Treasury regulations described above have not yet been
addressed in any rulings or other interpretations by the IRS, and it is
possible that the IRS could take a contrary position. If the IRS were to
assert successfully that the stated interest on the Junior Subordinated
Debt Securities was OID regardless of whether the Corporation exercises its
option to defer payments of interest on such debt securities, all holders
of Capital Securities would be required to include such OID in income on a
daily economic accrual basis as described above.
Corporate holders of Capital Securities will not be entitled to a
dividends-received deduction with respect to any income recognized by such
holders with respect to the Capital Securities.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES TO HOLDERS OF CAPITAL
SECURITIES
As described under the captions "Description of the Exchange
Securities--Description of Junior Subordinated Debt Securities--Tax Event
Prepayment" and "--Description of the Capital Securities--Liquidation of
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the Trust and Distribution of Junior Subordinated Debt Securities," Junior
Subordinated Debt Securities may be distributed to holders in exchange for
the Capital Securities and in liquidation of the Trust. Under current law,
such a distribution would be non-taxable and will result in the holder
receiving directly its pro rata share of the Junior Subordinated Debt
Securities previously held indirectly through the Trust, with a holding
period and aggregate tax basis equal to the holding period and aggregate
tax basis such holder had in its Capital Securities before such
distribution. If, however, the liquidation of the Trust were to occur
because the Trust is subject to United States Federal income tax with
respect to income accrued or received on the Junior Subordinated Debt
Securities, the distribution of the Junior Subordinated Debt Securities to
holders would be a taxable event to the Trust and to each holder and a
holder would recognize gain or loss as if the holder had exchanged its
Capital Securities for the Junior Subordinated Debt Securities it received
upon liquidation of the Trust.
A holder would accrue interest in respect of the Junior
Subordinated Debt Securities received from the Trust in the manner
described above under "--Interest Income and Original Issue Discount."
Under certain circumstances described herein (see "Description of
the Exchange Securities--Description of Capital Securities--Redemption"),
the Junior Subordinated Debt Securities may be redeemed for cash, with the
proceeds of such redemption distributed to holders in redemption of their
Capital Securities. Under current law, such a redemption would constitute a
taxable disposition of the redeemed Capital Securities for United States
Federal income tax purposes, and a holder would recognize gain or loss as
if it sold such redeemed Capital Securities for cash. See "--Sales or
Redemption of Capital Securities."
SALES OR REDEMPTION OF CAPITAL SECURITIES
A holder that sells or redeems Capital Securities will recognize
gain or loss equal to the difference between the amount realized by the
holder on the sale or redemption of the Capital Securities (except to the
extent that such amount realized is characterized as a payment in respect
of accrued but unpaid interest on such holder's allocable share of the
Junior Subordinated Debt Securities that the holder had not included in
gross income previously) and the holder's adjusted tax basis in the Capital
Securities sold or redeemed. Such gain or loss generally will be a capital
gain or loss and generally will be a long-term capital gain or loss if the
Capital Securities have been held for more than one year. Subject to
certain limited exceptions, capital losses cannot be applied to offset
ordinary income for United States Federal income tax purposes.
PROPOSED TAX LAW CHANGES
On March 19, 1996, during the 104th Congress, the Revenue
Reconciliation Bill of 1996 was introduced. This Bill would have, among
other things, generally denied interest deductions for interest on an
instrument issued by a corporation that has a maximum term of more than 20
years and that is not shown as indebtedness on the consolidated balance
sheet of the issuer or, when the instrument is issued to a related party
(other than a corporation) when the holder or some other related party
issues a related instrument that is not shown as indebtedness on the
issuer's consolidated balance sheet. The above-described provision of the
Bill was proposed to be effective generally for instruments issued on or
after December 7, 1995. If this provision were to apply to the Junior
Subordinated Debt Securities, the Corporation would not be able to deduct
interest on the Junior Subordinated Debt Securities. However, on March 29,
1996, the Chairmen of the Senate Finance and House Ways and Means
Committees issued the Joint Statement to the effect that it was their
intention that the effective date of the Bill, if enacted, would be no
earlier than the date of appropriate Congressional action. In addition,
subsequent to the publication of the Joint Statement, Senator Daniel
Patrick Moynihan and Representatives Sam M. Gibbons and Charles B. Rangel
wrote the Letters to Treasury Department officials concurring with the
views expressed in the Joint Statement. If the principles contained in the
Joint Statement and the Letters were followed, any proposed legislation in
this area that is subsequently enacted would not adversely affect the
ability of the Corporation to deduct interest on the Junior Subordinated
Debt Securities. The 104th Congress adjourned without enacting the Bill.
Legislation was subsequently proposed, however, by the United States
Department of the Treasury on February 6, 1997, as part of President
Clinton's Fiscal 1998
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Budget Proposal (the "Proposed Legislation"). The Proposed Legislation
contained a provision (similar to the provision of the Bill described
above) which generally would deny the interest deduction for interest paid
or accrued on an instrument issued by a corporation that (i) has a maximum
term of more than 15 years and (ii) is not shown as indebtedness on the
separate balance sheet of the issuer or, where the instrument is issued to
a related party (other than a corporation), where the holder or some other
related party issues a related instrument that is not shown as indebtedness
on the issuer's consolidated balance sheet. This provision is proposed to
be effective generally for instruments issued on or after the date of the
first Congressional committee action on the Proposed Legislation. If this
provision were to apply to the Junior Subordinated Debt Securities, the
Corporation would not be able to deduct the interest on the Junior
Subordinated Debt Securities. As of April 21, 1997, no Congressional
committee action has been taken on the Proposed Legislation. There can be
no assurance that the Proposed Legislation or future legislative or
administrative proposals or final legislation will not adversely affect the
ability of the Corporation to deduct interest on the Junior Subordinated
Debt Securities or otherwise affect the tax treatment of the transactions
described herein. Such a change therefore, could give rise to a Tax Event,
which would permit the Corporation to terminate the Trust and distribute
the Junior Subordinated Debt Securities to the holders of the Trust
Securities in liquidation of the Trust (and, if a Tax Event continued to
exist notwithstanding the taking of such actions, to prepay the Junior
Subordinated Debt Securities), as described more fully under "Description
of the Exchange Securities--Description of Capital Securities--Liquidation
of the Trust and Distribution of Junior Subordinated Debt Securities" and
"Description of Junior Subordinated Debt Securities--Tax Event
Prepayment."
NON-UNITED STATES HOLDERS
As used herein, the term "Non-United States Holder" means any
holder that is not a United States Holder. As discussed above, the Capital
Securities will be treated as evidence of an indirect beneficial ownership
interest in the Junior Subordinated Debt Securities. See "--Classification
of the Trust." Thus under present United States Federal income tax law, and
subject to the discussion below concerning backup withholding:
(a) no withholding of United States Federal income tax
will be required with respect to the payment by the Corporation or any
paying agent of principal or interest (which for purposes of this
discussion includes any OID) with respect to the Capital Securities or the
Junior Subordinated Debt Securities to a Non-United States Holder, provided
(i) that the beneficial owner of the Capital Securities ("Beneficial
Owner") does not actually or constructively own 10% or more of the total
combined voting power of all classes of stock of the Corporation entitled
to vote within the meaning of section 871(h)(3) of the Code and the
regulations thereunder, (ii) the Beneficial Owner is not a controlled
foreign corporation that is related to the Corporation through stock
ownership, (iii) the Beneficial Owner is not a bank whose receipt of
interest with respect to the Capital Securities (or the Junior Subordinated
Debt Securities) is described in section 881(c)(3)(A) of the Code and (iv)
the Beneficial Owner satisfies the statement requirement (described
generally below) set forth in section 871(h) and section 881(c) of the Code
and the regulations thereunder; and
(b) no withholding of United States Federal income tax
will be required with respect to any gain realized by a Non-United States
Holder upon the sale or other disposition of the Capital Securities (or the
Junior Subordinated Debt Securities).
To satisfy the requirement referred to in (a)(iv) above, the
Beneficial Owner, or a financial institution holding the Capital Securities
on behalf of such owner, must provide, in accordance with specified
procedures, to the Trust or its paying agent, a statement to the effect
that the Beneficial Owner is not a United States Holder. Pursuant to
current temporary Treasury regulations, these requirements will be met if
(1) the Beneficial Owner provides his name and address, and certifies,
under penalties of perjury, that it is not a United States person (which
certification may be made on an IRS Form W-8 (or successor form)) or (2) a
financial institution holding the Capital Securities on behalf of the
Beneficial Owner certifies, under penalties of perjury, that such statement
has been received by it and furnishes
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a paying agent with a copy thereof.
If a Non-United States Holder cannot satisfy the requirements of
the "portfolio interest" exception described in (a) above, payments of
interest made to such Non-United States Holder will be subject to a 30%
withholding tax unless the Beneficial Owner provides the Corporation or its
paying agent, as the case may be, with a properly executed (1) IRS Form
1001 (or successor form) claiming an exemption from, or a reduction of,
such withholding tax under the benefit of a tax treaty or (2) IRS Form 4224
(or successor form) stating that interest paid on the Junior Subordinated
Debt Securities is not subject to withholding tax because it is effectively
connected with the Beneficial Owner's conduct of a trade or business in the
United States.
If a Non-United States Holder is engaged in a trade or business in
the United States and interest on the Junior Subordinated Debt Securities
is effectively connected with the conduct of such trade or business, the
Non-United States Holder, although exempt from the withholding tax
discussed above, will be subject to United States Federal income tax on
such interest on a net income basis in the same manner as if it were a
United States Holder. In addition, if such Non-United States Holder is a
foreign corporation, it may be subject to a branch profits tax equal to 30%
of its effectively connected earnings and profits for the taxable year,
subject to adjustments. For this purpose, such interest income would be
included in such foreign corporation's earnings and profits.
Any gain realized upon the sale or other disposition of the
Capital Securities (or the Junior Subordinated Debt Securities) generally
will not be subject to United States Federal income tax unless (i) such
gain is effectively connected with a trade or business in the United States
of the Non-United States Holder, (ii) in the case of a Non-United States
Holder who is an individual, such individual is present in the United
States for 183 days or more in the taxable year of such sale, exchange or
retirement, and certain other conditions are met, or (iii) in the case of
any gain representing accrued interest on the Junior Subordinated Debt
Securities, the requirements described above are not satisfied.
As discussed above, legislation was introduced in the 104th
Congress that would have denied an interest deduction to the Corporation
for the interest payable on the Junior Subordinated Debt Securities. Such
legislation also may have caused the Junior Subordinated Debt Securities to
have been classified as equity (rather than indebtedness) of the
Corporation for United States Federal income tax purposes and, thus, caused
the income derived from the Junior Subordinated Debt Securities to be
characterized as dividend, rather than interest, income for such purposes.
Dividend income is not eligible for the "portfolio interest" exception
described in (a) above. Therefore, if such legislation had been enacted,
income derived by a Non-United States Holder on the Capital Securities may
have been subject to the 30% United States Federal withholding tax
described above unless a reduction or elimination of such tax was available
under an applicable tax treaty or such dividend income was effectively
connected with a trade or business carried on in the United States by such
Non-United States Holder. The 104th Congress adjourned without enacting
such legislation. However, it is possible that legislation could be enacted
in the future that could affect the characterization of income paid on the
Capital Securities (or the Junior Subordinated Debt Securities) or
otherwise adversely affect a Non-United States Holder. See "--Proposed Tax
Law Changes".
INFORMATION REPORTING AND BACKUP WITHHOLDING
Income on the Capital Securities held of record by Holders (other
than United States corporations and other exempt holders) will be reported
annually to such holders and to the IRS. The Administrative Trustees
currently intend to deliver such reports to holders of record prior to
January 31 following each calendar year. It is anticipated that persons who
hold Capital Securities as nominees for beneficial holders will report the
required tax information to beneficial holders on Form 1099.
"Backup withholding" at a rate of 31% will apply to payments of
interest to non-exempt United States Holders unless the holder furnishes
its taxpayer identification number in the manner prescribed in
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<PAGE>
applicable Treasury regulations, certifies that such number is correct,
certifies as to no loss of exemption from backup withholding and meets
certain other conditions.
No Form 1099 information reporting or backup withholding will be
required with respect to payments made by the Trust or any paying agent to
Non-United States Holders if a statement described in (a)(iv) under
"Non-United States Holders" has been received and the payor does not have
actual knowledge that the beneficial owner is a United States person.
However, payments of interest or OID made by the Trust or any Paying Agent
to Non-United States Holders are required to be reported to those Holders
and the IRS on Form 1042-S.
In addition, backup withholding and information reporting will not
apply if payments of the principal, interest, OID or premium on the Junior
Subordinated Debt Securities are paid or collected by a foreign office of a
custodian, nominee or other foreign agent on behalf of the Beneficial
Owner, or if a foreign office of a broker (as defined in applicable
Treasury regulations) pays the proceeds of the sale of the Capital
Securities to the owner thereof. If, however, such nominee, custodian,
agent or broker is, for United States Federal income tax purposes, a United
States person, a controlled foreign corporation or a foreign person that
derives 50% or more of its gross income for certain periods from the
conduct of a trade or business in the United States, such payments will not
be subject to backup withholding but will be subject to information
reporting, unless (1) such custodian, nominee, agent or broker has
documentary evidence in its records that the Beneficial Owner is not a
United States person and certain other conditions are met or (2) the
Beneficial Owner otherwise establishes an exemption.
Payment of the proceeds from disposition of Capital Securities to
or through a United States office of a broker is subject to information
reporting and backup withholding unless the holder or Beneficial Owner
establishes an exemption from information reporting and backup withholding.
Any amounts withheld from a holder of the Capital Securities under
the backup withholding rules will be allowed as a refund or a credit
against such holder's United States Federal income tax liability, provided
the required information is furnished to the IRS.
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of
Exchange Securities received in exchange for Old Capital Securities where
such Old Capital Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Trust and the
Corporation have agreed that, starting on the Expiration Date and ending on
the close of business on the 180th day following the Expiration Date, they
will make this Prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition,
until ______________, 1997, all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Corporation and the Trust will not receive any proceeds from
any sale of Exchange Securities by broker-dealers. Exchange Securities
received by broker-dealers for their own account pursuant to the Exchange
Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Exchange Offer
and any broker or dealer that participates in a distribution of such
Exchange Securities
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<PAGE>
may be deemed to be an "underwriter" within the meaning of the Securities
Act and any profit of any such resale of Exchange Securities and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
VALIDITY OF THE EXCHANGE SECURITIES
Certain matters of Delaware law relating to the validity of the
Exchange Capital Securities and the formation of the Trust will be passed
upon by Potter Anderson & Corroon, special Delaware Counsel to the Trust.
The validity of the Exchange Guarantee and the Exchange Junior Subordinated
Debt Securities will be passed upon for the Corporation by William F.
Rosenblum, Jr., Esq., Senior Vice President, Deputy General Counsel and
Secretary of the Corporation. Mr. Rosenblum owns or has the right to
acquire a number of shares of common stock of the Corporation equal to less
than 1% of the outstanding common stock of the Corporation. Mr. Rosenblum
will rely on the opinion of Potter Anderson & Corroon as to matters of
Delaware law and on the opinion of Piper & Marbury as to matters of
Maryland law. Certain matters relating to United States Federal income tax
considerations will be passed upon for the Corporation by Simpson Thacher &
Bartlett.
EXPERTS
The consolidated statements of condition of the Corporation as of
December 31, 1995 and 1994 and the related consolidated statements of
income, changes in stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1995 and the consolidated
statements of condition of the Bank as of December 31, 1995 and 1994
included in the Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995 have been incorporated herein by reference in reliance
upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated herein by reference, and upon the authority of
said firm as experts in accounting and auditing. The report of KPMG Peat
Marwick LLP covering the December 31, 1995 financial statements refers to
the fact that in 1995 the Corporation adopted Statement of Financial
Accounting Standards ("SFAS") No. 114, "Accounting by Creditors for
Impairment of a Loan," SFAS No. 118, "Accounting by Creditors for
Impairment of a Loan - Income Recognition and Disclosures," and SFAS No.
122, "Accounting for Mortgage Servicing Rights an Amendment of SFAS No.
65," and in 1993 the Corporation adopted SFAS No. 115, "Accounting for
Certain Investments in Debt and Equity Securities."
69
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Article Ninth of the Corporation's Articles of
Incorporation and the provisions of Section 2-418 of the General
Corporation Law of Maryland, as amended, the Corporation may indemnify a
director or officer for service in such capacity unless it is proved that:
(a) the act or omission of such person was material to the cause of action
adjudicated in the proceeding and either was committed in bad faith or was
the result of active and deliberate dishonesty; (b) such person actually
received an improper personal benefit in money, property or services; or
(c) in the case of any criminal proceeding, such person had reasonable
cause to believe that the act or omission was unlawful. Indemnification may
be against judgments, penalties, fines, settlements, and reasonable
expenses actually incurred by the director or officer in connection with
the proceeding; however, if the proceeding was one by or in the right of
the Corporation, indemnification may not be made if such person has been
adjudged liable to the Corporation. The termination of any proceeding by
judgment, order or settlement does not create a presumption that the
director or officer did not meet the requisite standard of conduct for
indemnification, but the termination of any proceeding by conviction or
upon a plea of nolo contendere or its equivalent, or an entry of an order
of probation prior to judgment, does create a rebuttable presumption that
such person may not be indemnified. In addition, the Corporation may pay or
reimburse, prior to final disposition, the expenses, including attorneys'
fees, incurred by a director or officer in defending a proceeding provided
that such person has given (a) a written affirmation that, in good faith,
he believes that he has met the standard of conduct necessary for
indemnification by the Corporation and (b) a written undertaking to the
Corporation to repay such advances if it is ultimately determined that he
is not entitled to indemnification. This undertaking, however, need not be
secured and may be accepted without reference to such person's financial
ability to make the repayment. Article Ninth of the Corporation's Articles
of Incorporation also provides that the Corporation may indemnify any
person who is or was an employee or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise to the extent and under the circumstances provided for
indemnification of directors and officers of the Corporation. Any
indemnification shall be made by the Corporation only as authorized in the
specific case upon a determination by the Corporation's Board of Directors,
by independent legal counsel in a written opinion or by the stockholders of
the Corporation that indemnification of the director, officer, employee or
agent is proper in the circumstances because such person has met the
applicable standard of conduct. Such indemnification is not exclusive of
any other rights and remedies to which a director, officer, employee or
agent of the Corporation may be entitled by law or other agreement or
otherwise.
The Corporation carries a policy of insurance providing for
indemnification of directors, officers and employees of the Corporation and
its subsidiaries as permitted by Article Ninth of the Corporation's
Articles of Incorporation and Section 2-418 of the General Corporation Law
of Maryland, as amended.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT
- --------
4.1 Junior Subordinated Indenture between the Corporation and Bankers
Trust Company, as Debenture Trustee, dated November 27, 1996.*
4.2 Certificate of Trust of Republic New York Capital I.*
4.3 Declaration of Trust among the Corporation, Bankers Trust Company as
Property Trustee and Delaware Trustee, and the Administrative Trustees
named therein, dated November 21, 1996.*
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<PAGE>
4.4 Amended and Restated Declaration of Trust among the Corporation,
Bankers Trust Company, as Property Trustee and Delaware Trustee, and
the Administrative Trustees named therein, dated November 27, 1996.*
4.5 Form of Capital Security Certificate originally issued by Republic New
York Capital I on November 27, 1996 (included as Exhibit B of Exhibit
4.4).*
4.6 Form of Capital Security Certificate to be issued by Republic New York
Capital I and registered under the Securities Act of 1933, as
amended.*
4.7 Form of Security for 7.75% Junior Subordinated Debt Security due
November 15, 2026 originally issued by the Corporation on November 27,
1996 (included in Article 2 of Exhibit 4.1).*
4.8 Form of Security for 7.75% Junior Subordinated Debt Security due
November 15, 2026 to be issued by the Corporation and registered under
the Securities Act of 1933, as amended.*
4.9 Guarantee Agreement originally executed by the Corporation and Bankers
Trust Company, as Guarantee Trustee, on November 27, 1996.*
4.10 Form of Guarantee Agreement to be entered into by the Corporation and
Bankers Trust Company, as Guarantee Trustee, and registered under the
Securities Act of 1933, as amended.**
4.11 Registration Agreement, dated November 27, 1996 between the
Corporation, Republic New York Capital I and Salomon Brothers Inc.*
5.1 Opinion and consent of William F. Rosenblum, Jr. Esq., Senior Vice
President, Deputy General Counsel and Secretary of the Corporation as
to legality of the Junior Subordinated Debt Securities and the
Guarantee to be issued by the Corporation.**
5.2 Opinion of special Delaware counsel as to legality of the Capital
Securities to be issued by Republic New York Capital I.**
8 Opinion of special tax counsel as to certain federal income tax
matters.**
12 Computation of ratio of earnings to fixed charges.**
23.1 Consent of KPMG Peat Marwick LLP.*
23.2 Consent of William F. Rosenblum, Jr.(included in Exhibit 5.1).**
23.3 Consent of special Delaware counsel (included in Exhibit 5.2).**
24.1 Form of Power of Attorney of Republic New York Corporation.*
24.2 Form of Power of Attorney of Republic New York Capital I.*
25.1 Form T-1 Statement of Eligibility of Bankers Trust Company to act as
trustee under the Junior Subordinated Indenture.*
25.2 Form T-1 Statement of Eligibility of Bankers Trust Company to act as
trustee under the Amended and Restated Declaration of Trust.*
25.3 Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Capital Securities.*
99.1 Form of Letter of Transmittal.**
99.2 Form of Notice of Guaranteed Delivery.**
99.3 Form of Exchange Agent Agreement.**
- ---------
* Previously filed.
** Filed herewith.
ITEM 22. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, (the "Securities Act") each filing of a Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934, as amended (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934), that is incorporated by reference in this
Registration Statement shall
71
<PAGE>
be deemed to be a new registration statement relating to the Exchange
Securities and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of each Registrant pursuant to the provisions of the Articles of
Incorporation of the Corporation, or otherwise, each Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Corporation of
expenses incurred or paid by a director, officer or controlling person of
each Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Corporation will,
unless in the opinion of its counsel the matter has been settled by the
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned Registrants hereby undertake to respond to
requests for information that is incorporated by reference into the
Prospectus, pursuant to Item 4, 10(b), 11 or 13 of this Form, within one
business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date
of the Registration Statement through the date of responding to the
request.
The undersigned Registrants hereby undertake to supply by means of
a post-effective amendment all information concerning a transaction, and
the company being acquired or involved therein, that was not the subject of
and included in the registration statement when it became effective.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, REPUBLIC NEW
YORK CORPORATION CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT
IT MEETS ALL OF THE REQUIREMENTS FOR FILING THIS FORM S-4 AND HAS DULY
CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF
NEW YORK, ON APRIL 21, 1997.
REPUBLIC NEW YORK CORPORATION
By: WALTER H. WEINER
------------------------------
Walter H. Weiner
(Chairman of the Board)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED BELOW ON APRIL 21, 1997.
SIGNATURE TITLE
--------- -----
Director and Chairman
of the Board
WALTER H. WEINER (Principal Executive Officer)
- ----------------------
(Walter H. Weiner)
Executive Vice President
and Chief Financial Officer -
Financial Reporting and Control
(Principal Financial and
KENNETH F. COOPER Accounting Officer)
- ----------------------
(Kenneth F. Cooper)
KURT ANDERSEN Director
- ----------------------
(Kurt Andersen)
Director
- ----------------------
(Robert A. Cohen)
Director
- ----------------------
(Cyril S. Dwek)
ERNEST GINSBERG Director
- ----------------------
(Ernest Ginsberg)
NATHAN HASSON Director
- ----------------------
(Nathan Hasson)
Director
- ----------------------
(Jeffrey C. Keil)
PETER KIMMELMAN Director
- ----------------------
(Peter Kimmelman)
RICHARD A. KRAEMER Director
- ----------------------
(Richard A. Kraemer)
LEONARD LIEBERMAN Director
- ----------------------
(Leonard Lieberman)
WILLIAM C. MACMILLEN, JR . Director
- --------------------------
(William C. MacMillen, Jr.)
73
<PAGE>
SIGNATURE TITLE
--------- -----
PETER J. MANSBACH Director
- -----------------------
(Peter J. Mansbach)
MARTIN F. MERTZ Director
- -----------------------
(Martin F. Mertz)
JAMES L. MORICE Director
- ----------------------
(James L. Morice)
Director
- ----------------------
(E. Daniel Morris)
JANET L. NORWOOD Director
- ----------------------
(Janet L. Norwood)
JOHN A. PANCETTI Director
- -----------------------
(John A. Pancetti)
VITO S. PORTERA Director
- ----------------------
(Vito S. Portera)
WILLIAM P. ROGERS Director
- ----------------------
(William P. Rogers)
ELIAS SAAL Director
- ----------------------
(Elias Saal)
DOV C. SCHLEIN Director
- ----------------------
(Dov C. Schlein)
PETER WHITE Director
- ----------------------
(Peter White)
74
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, REPUBLIC NEW
YORK CAPITAL I CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL THE REQUIREMENTS FOR FILING THIS FORM S-4 AND HAS DULY CAUSED
THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK
ON APRIL 21, 1997.
REPUBLIC NEW YORK CAPITAL I
By: THOMAS F. ROBARDS
-------------------------------
(Thomas F. Robards)
Administrative Trustee
By: STEPHEN J. SAALI
-------------------------------
(Stephen J. Saali)
Administrative Trustee
75
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
--------- -----------
4.1 Junior Subordinated Indenture between the Corporation and Bankers
Trust Company, as Debenture Trustee, dated November 27, 1996.*
4.2 Certificate of Trust of Republic New York Capital I.*
4.3 Declaration of Trust among the Corporation, Bankers Trust Company as
Property Trustee and Delaware Trustee, and the Administrative Trustees
named therein, dated November 21, 1996.*
4.4 Amended and Restated Declaration of Trust among the Corporation,
Bankers Trust Company, as Property Trustee and Delaware Trustee, and
the Administrative Trustees named therein, dated November 27, 1996.*
4.5 Form of Capital Security Certificate originally issued by Republic New
York Capital I on November 27, 1996 (included as Exhibit B of Exhibit
4.4).*
4.6 Form of Capital Security Certificate to be issued by Republic New York
Capital I and registered under the Securities Act of 1933, as
amended.*
4.7 Form of Security for 7.75% Junior Subordinated Debt Security due
November 15, 2026 originally issued by the Corporation on November 27,
1996 (included in Article 2 of Exhibit 4.1).*
4.8 Form of Security for 7.75% Junior Subordinated Debt Security due
November 15, 2026 to be issued by the Corporation and registered under
the Securities Act of 1933, as amended.*
4.9 Guarantee Agreement originally executed by the Corporation and Bankers
Trust Company, as Guarantee Trustee, on November 27, 1996.*
4.10 Form of Guarantee Agreement to be entered into by the Corporation and
Bankers Trust Company, as Guarantee Trustee, and registered under the
Securities Act of 1933, as amended.**
4.11 Registration Agreement, dated November 27, 1996 between the
Corporation, Republic New York Capital I and Salomon Brothers Inc.*
5.1 Opinion and consent of William F. Rosenblum, Jr. Esq., Senior Vice
President, Deputy General Counsel and Secretary of the Corporation as
to legality of the Junior Subordinated Debt Securities and the
Guarantee to be issued by the Corporation.**
5.2 Opinion of special Delaware counsel as to legality of the Capital
Securities to be issued by Republic New York Capital I.**
8 Opinion of special tax counsel as to certain federal income tax
matters.**
12 Computation of ratio of earnings to fixed charges.**
23.1 Consent of KPMG Peat Marwick LLP.*
23.2 Consent of William F. Rosenblum, Jr.(included in Exhibit 5.1).**
23.3 Consent of special Delaware counsel (included in Exhibit 5.2).**
24.1 Form of Power of Attorney of Republic New York Corporation.*
24.2 Form of Power of Attorney of Republic New York Capital I.*
25.1 Form T-1 Statement of Eligibility of Bankers Trust Company to act as
trustee under the Junior Subordinated Indenture.*
25.2 Form T-1 Statement of Eligibility of Bankers Trust Company to act as
trustee under the Amended and Restated Declaration of Trust.*
25.3 Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Capital Securities.*
99.1 Form of Letter of Transmittal.**
99.2 Form of Notice of Guaranteed Delivery.**
99.3 Form of Exchange Agent Agreement.**
- ---------
* Previously filed.
** Filed herewith.
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<PAGE>
Exhibit 4.1
GUARANTEE AGREEMENT
Between
REPUBLIC NEW YORK CORPORATION
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
dated as of
_____________, 1997
----------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Section of
of 1939, as amended Guarantee Agreement
310(a). ...............................................4.1(a)
310(b). ...............................................4.1(c), 2.8
310(c). ...............................................Inapplicable
311(a). ...............................................2.2(b)
311(b). ...............................................2.2(b)
311(c). ...............................................Inapplicable
312(a). ...............................................2.2(a)
312(b). ...............................................2.2(b)
313. . ...............................................2.3
314(a). ...............................................2.4
314(b). ...............................................Inapplicable
314(c). ...............................................2.5
314(d). ...............................................Inapplicable
314(e). ...............................................1.1, 2.5, 3.2
314(f). ...............................................2.1, 3.2
315(a). ...............................................3.1(d)
315(b). ...............................................2.7
315(c). ...............................................3.1
315(d) ...............................................3.1(d)
316(a). ...............................................1.1, 2.6, 5.4
316(b). ...............................................5.3
316(c). ...............................................8.2
317(a). ...............................................Inapplicable
317(b). ...............................................Inapplicable
318(a). ...............................................2.1(b)
318(b). ...............................................2.1
318(c). ...............................................2.1(c)
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS .................................... 1
Section 1.1. Definitions .................................... 1
ARTICLE II. TRUST INDENTURE ACT ................... 4
Section 2.1. Trust Indenture Act; Application .......... 4
Section 2.2. List of Holders ............................ 4
Section 2.3. Reports by the Guarantee Trustee .......... 4
Section 2.4. Periodic Reports to Guarantee Trustee .......... 5
Section 2.5. Evidence of Compliance with Conditions Precedent.. 5
Section 2.6. Events of Default; Waiver ................... 5
Section 2.7. Event of Default; Notice ................... 5
Section 2.8. Conflicting Interests ............................ 5
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE ........ 5
Section 3.1. Powers and Duties of the Guarantee Trustee ....... 5
Section 3.2. Certain Rights of Guarantee Trustee .......... 7
Section 3.3. Indemnity .................................... 8
Section 3.4. Expenses .................................... 8
ARTICLE IV. GUARANTEE TRUSTEE .................................... 9
Section 4.1. Guarantee Trustee; Eligibility .......... 9
Section 4.2. Appointment, Removal and Resignation
of the Guarantee Trustee............... 9
ARTICLE V. GUARANTEE ................................. 10
Section 5.1. Guarantee ................................. 10
Section 5.2. Waiver of Notice and Demand ...................... 10
Section 5.3. Obligations Not Affected ......................... 10
Section 5.4. Rights of Holders ............................ 11
Section 5.5. Guarantee of Payment ............................ 11
Section 5.6. Subrogation .................................... 11
Section 5.7. Independent Obligations ................... 11
ARTICLE VI. COVENANTS AND SUBORDINATION ............................ 12
Section 6.1. Subordination ........................... 12
Section 6.2. Pari Passu Guarantees ............................ 12
ARTICLE VII. TERMINATION ............................ 12
Section 7.1. Termination ............................ 12
ARTICLE VIII. MISCELLANEOUS .................................... 12
Section 8.1. Successors and Assigns............................ 12
Section 8.2. Amendments .................................... 12
Section 8.3. Notices .................................... 13
Section 8.4. Benefit .................................... 14
Section 8.5. Interpretation ............................ 14
Section 8.6. Governing Law ............................ 14
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of_______________, 1997, is
executed and delivered by REPUBLIC NEW YORK CORPORATION, a bank holding
company (the "Guarantor") having its principal office at 452 Fifth Avenue,
New York, New York 10018 and BANKERS TRUST COMPANY, a New York banking
corporation, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Trust Securities (as
defined herein) of Republic New York Capital I, a Delaware statutory
business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration of Trust"), dated as of November 27, 1996, among the
Trustees named therein, the Guarantor, as Depositor, and the Holders from
time to time of undivided beneficial ownership interests in the assets of
the Issuer, the Issuer issued $150,000,000 aggregate Liquidation Amount of
its 7 3/4% Capital Trust Pass-through Securities sm (TruPSsm),
Liquidation Amount $1,000 per security (the "Old Capital Securities") and
$4,640,000 of aggregate liquidation preference of Common Securities,
liquidation preference $1,000 per security (the "Common Securities" and
collectively with the Capital Securities (as defined herein), the "Trust
Securities") representing undivided beneficial ownership interests in the
assets of the Issuer and having the terms set forth in the Declaration of
Trust; and
WHEREAS, the Trust Securities were issued by the Issuer and the
proceeds thereof were used to purchase the Junior Subordinated Debt
Securities (as defined in the Declaration of Trust) of the Guarantor which
were deposited with Bankers Trust Company, as Property Trustee under the
Declaration of Trust, as trust assets; and
WHEREAS, as an incentive for persons to purchase Old Capital
Securities, the Guarantor irrevocably and unconditionally agreed, to the
extent set forth in that certain Guarantee Agreement dated as of November
27, 1996 among the Guarantor and the Guarantee Trustee, for the benefit of
the holders of the Old Capital Securities and Common Securities (the "Old
Guarantee"), to make certain payments to such holders of the on the terms
and conditions set forth therein; and
WHEREAS, pursuant to that certain Registration Agreement, dated as
of November 27, 1996, among the Guarantor, the Issuer and the Purchaser
named therein (the "Registration Agreement"), the Guarantor and the Issuer
agreed that if the Guarantor and the Trust filed a registration statement
(the "Registration Statement") to exchange the Old Capital Securities for a
like amount of new capital securities (the "Exchange Capital Securities"
and together with the Old Capital Securities, the "Capital Securities"),
then the Guarantor and the Issuer would simultaneously include in the
Registration Statement an offer to exchange the Old Guarantee for this
Guarantee Agreement for the benefit of the holders of the Trust Securities;
and
WHEREAS, the Registration Agreement provides, under certain
circumstances (including the failure of the Issuer and the Guarantor to
file the Registration Statement within a prescribed period of time
following the issuance of the Trust Securities and the failure of the
exchange offer contemplated by the Registration Statement to be consummated
within a prescribed period of time following the issuance of the Trust
Securities), for the interest payable on the Junior Subordinated Debt
Securities to be increased and for a corresponding increase in the rate at
which Distributions (as defined in the Declaration of Trust) accrue on the
Old Capital Securities and the Common Securities; and
WHEREAS, the Guarantor would be adversely affected by such an increase
in the interest rate on the Junior Subordinated Debt Securities and the
Distributions on the Old Capital Securities and the Common Securities; and
WHEREAS, on January 24, 1997, the Guarantor and the Issuer filed the
Registration Statement; and
WHEREAS, pursuant to the Registration Agreement, the Guarantor and
the Issuer wish to exchange the Old Guarantee for this Guarantee Agreement;
and
WHEREAS, this Guarantee Agreement is substantially identical to the
Old Guarantee except that this Guarantee Agreement will be registered
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act"); and
WHEREAS, in satisfaction of its obligations under the Registration
Agreement, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth herein, to pay to the Holders of the Trust
Securities the Guarantee Payments (as defined herein) and to make certain
other payments on the terms and conditions set forth herein;
NOW, THEREFORE, in satisfaction of its obligations under the
Registration Agreement, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Trust
Securities.
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Declaration of
Trust as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; provided, however, that
an Affiliate of the Guarantor shall not be deemed to include the Issuer.
For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Capital Securities" shall have the meaning specified in the
fourth recital of this Guarantee Agreement, and shall include the Exchange
Capital Securities.
"Common Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Debt" means, with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not
contingent, (i) the principal of and premium, if any, and unpaid interest
on indebtedness for money borrowed, (ii) purchase money and similar
obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Guarantor is responsible for the payment of, such
indebtedness of others, (v) renewals, extensions and refunding of any such
indebtedness, (vi) interest or obligations in respect of any such
indebtedness accruing after the commencement of any insolvency or
bankruptcy proceedings and (vii) obligations associated with derivative
products such as interest rate and currency exchange contracts, foreign
exchange contracts, commodity contracts and similar arrangements.
"Declaration of Trust" means the Amended and Restated Declaration
of Trust, dated November 27, 1996, executed by the Guarantor, as Depositor,
Bankers Trust (Delaware), as Delaware Trustee, Bankers Trust Company, as
Property Trustee, and the Administrative Trustees named therein.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided,
however, that, except with respect to a default in payment of any Guarantee
Payment, the Guarantor shall have received notice of default and shall not
have cured such default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust Securities,
to the extent not paid or made by or on behalf of the Issuer: (i) any
accrued and unpaid Distributions (as defined in the Declaration of Trust)
required to be paid on the Trust Securities, to the extent the Issuer shall
have funds on hand available therefor at such time, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), with respect to the Trust Securities
called for redemption by the Issuer to the extent the Issuer shall have
funds on hand available therefor at such time, and (iii) upon a voluntary
or involuntary termination, winding-up or liquidation of the Issuer, unless
Junior Subordinated Debt Securities are distributed to the Holders, the
lesser of (a) the aggregate of the liquidation preference of $1,000 per
Trust Security plus accrued and unpaid Distributions on the Trust
Securities to the date of payment to the extent the Issuer shall have funds
on hand available to make such payment at such time and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means Bankers Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each
such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records
of the Issuer, of any Trust Securities; provided, however, that in
determining whether the holders of the requisite percentage of Trust
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor, the Guarantee Trustee, or any
Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
November 27, 1996, between the Guarantor and Bankers Trust Company, as
trustee, as supplemented and amended.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the aggregate Liquidation Amount
of all then outstanding Trust Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer, President
or a Vice President, and by the Treasurer, an Associate Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary of such Person, and delivered to the Guarantee Trustee. Any
Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Responsible Officer" when used with respect to the Guarantee
Trustee means any officer assigned to the Corporate Trust
Office, including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other officer of
the Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Guarantee Agreement, and
also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity
with the particular subject.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Guarantor
whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt, whether incurred on or prior to the date of this
Guarantee Agreement or thereafter incurred, unless, in the instrument
creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are not superior in right
of payment to the Trust Securities or to other Debt which is pari passu
with, or subordinated to, the Trust Securities; provided, however, that
Senior Debt shall not be deemed to include (a) any Debt of the Guarantor
which, when incurred and without respect to any election under Section
1111(b) of the United States Bankruptcy Code of 1978, as amended, was
without recourse to the Guarantor , (b) any Debt of the Guarantor to any of
its Subsidiaries, (c) Debt to any employee of the Guarantor, (d) Debt which
by its terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the extent that
payments made to the holders of such Debt by the holders of the Securities
as a result of the subordination provisions of this Indenture would be
greater than such payments otherwise would have been as a result of any
obligation of such holders of such Debt to pay amounts over to the obligees
on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of the subordination provisions to
which such Debt is subject, (e) any other debt securities issued pursuant
to the Indenture, and (f) this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss. 77aaa-77bbbb), as amended.
"Trust Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If, and to the extent that, any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (i) semiannually, on or before November 15 and May 15 of
each year, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as
of a date not more than 15 days prior to the delivery thereof, and (ii) at
such other times as the Guarantee Trustee may request in writing, within 30
days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession
or control of the Guarantor and is not identical to a previously supplied
list of Holders or has not otherwise been received by the Guarantee Trustee
in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than July 15 of each year, commencing July 15, 1997, the
Guarantee Trustee shall provide to the Holders such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the
Securities and Exchange Commission and the Holders such documents, reports
and information, if any, as required by Section 314 of the Trust Indenture
Act and the compliance certificate required by Section 314 of the Trust
Indenture Act, in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to
be given by an officer pursuant to Section 314(c)(1) may be given in the
form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Trust
Securities may, by vote, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Guarantee Agreement,
but no such waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent therefrom.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notice of all Events of Default known to the
Guarantee Trustee, unless such Events of Default have been cured before the
giving of such notice; provided, that, except in the case of a default in
the payment of a Guarantee Payment, the Guarantee Trustee shall be
protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless a Responsible Officer charged with the
administration of the Declaration of Trust shall have received written
notice of such Event of Default.
SECTION 2.8. Conflicting Interests.
The Declaration of Trust shall be deemed to be specifically described
in this Guarantee Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder exercising
his or her rights pursuant to Section 5.4(iv) or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee. The right, title and
interest of the Guarantee Trustee shall automatically vest in any Successor
Guarantee Trustee upon acceptance by such Successor Guarantee Trustee of
its appointment hereunder, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Guarantee Agreement, and no implied covenants shall be
read into this Guarantee Agreement against the Guarantee Trustee. In case
an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement, and use the
same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her
own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express
provisions of this Guarantee Agreement, and the Guarantee
Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth
in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of
the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to
be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements
of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a Majority in Liquidation Amount of the Trust Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not
assured to it under the terms of this Guarantee Agreement or
indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated
by this Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting to take any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(iv) The Guarantee Trustee may consult with legal
counsel, and the advice or written opinion of such legal counsel
with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and
in accordance with such advice or opinion. Such legal counsel may
be legal counsel to the Guarantor or any of its Affiliates and may
be one of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of
competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee
such security and indemnity reasonably satisfactory to it against
the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(v) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by
this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit.
(vii) The Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders, (B) may refrain from
enforcing such remedy or right or taking such other action until
such instructions are received, and (C) shall be fully protected
in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act
or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which
the Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any
such right, power, duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be a duty to act
in accordance with such power and authority.
SECTION 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee and its
directors, officers, agents and employees for, and to hold them harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Guarantee Trustee, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Guarantee Trustee will not claim or exact
any lien or charge on any Guarantee Payments as a result of any amount due
to it under this Guarantee Agreement. This indemnity shall survive the
termination of this Guarantee Agreement or the resignation or removal of
the Guarantee Trustee.
SECTION 3.4. Expenses.
The Guarantor shall from time to time reimburse the Guarantee
Trustee for its expenses and costs incurred in connection with the
performance of its duties hereunder.
<PAGE>
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000, and shall be a corporation
meeting the requirements of Section 310(c) of the Trust Indenture
Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this
Section and to the extent permitted by the Trust Indenture Act,
the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and the Guarantor shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), in the absence of the existence of an
Event of Default, the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by a
written instrument executed by such Successor Guarantee Trustee and
delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Guarantee Trustee
has been appointed and has accepted such appointment by an instrument in
writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor,
any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice,
if any, as it may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
SECTION 5. 1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the
Issuer may have or assert. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such amounts to
the Holders. The Guarantor shall give prompt written notice to the
Guarantee Trustee in the event it makes any direct payment hereunder.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Guarantee Trustee, the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Trust Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Junior Subordinated Debt Securities as so provided in
the Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Trust Securities or the extension of
time for the performance of any other obligation under, arising out of, or
in connection with, the Trust Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Trust
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Trust
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any
of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce
this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a
Majority in Liquidation Amount of the Trust Securities have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee in respect of this Guarantee
Agreement or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and (iv) any Holder may institute a
legal proceeding directly against the Guarantor to enforce its rights under
this Guarantee Agreement without first instituting a legal proceeding
against the Issuer or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer) or upon distribution of Junior Subordinated
Debt Securities to Holders as provided in the Declaration of Trust.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement and shall have the right to
waive payment by the Issuer pursuant to Section 5.1; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it
may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee
Agreement if, at the time of any such payment any amounts are due and
unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to
the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Trust
Securities and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to
in subsections (a) through (g), inclusive, of Section 5.3 hereof.
<PAGE>
ARTICLE VI. COVENANTS AND SUBORDINATION
SECTION 6. 1. Subordination.
This Guarantee Agreement will constitute an unsecured obligation
of the Guarantor and will rank subordinate and junior in right of payment
to all Senior Debt of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
This Guarantee Agreement shall rank pari passu with any similar
Guarantee Agreements issued by the Guarantor on behalf of the holders of
Trust Securities issued by Republic New York Capital II.
ARTICLE VII. TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect upon (i) full payment of the Redemption Price of all Trust
Securities, (ii) the distribution of Junior Subordinated Debt Securities to
the Holders in exchange for all of the Trust Securities or (iii) full
payment of the amounts payable in accordance with the Declaration of Trust
upon liquidation of the Issuer. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must repay any sums paid with
respect to Trust Securities or this Guarantee Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Trust Securities then outstanding. Except in connection with
a consolidation, merger or sale involving the Guarantor that is permitted
under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder.
SECTION 8.2. Amendments.
Except with respect to any changes which do not adversely affect
the rights of the Holders in any material respect (in which case no consent
of the Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a Majority
in Liquidation Amount of all the outstanding Trust Securities. The
provisions of Article VI of the Declaration of Trust concerning meetings of
the Holders shall apply to the giving of such approval.
<PAGE>
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted
to be given hereunder shall be in writing, duly signed by the party giving
such notice, and delivered, telecopied (confirmed by delivery of the
original) or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth
below or such other address, facsimile number or to the attention of such
other Person as the Guarantor may give notice to the Holders:
REPUBLIC NEW YORK CORPORATION
452 Fifth Avenue
New York, NY 10018
Facsimile No.: (212) 525-6875
Attention: Treasurer
(b) if given to the Issuer, in care of the Guarantee Trustee,
at the Issuer's (and the Guarantee Trustee's) address set forth below or
such other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
Republic New York Capital I
c/o Republic New York Corporation
452 Fifth Avenue
New York, NY 10018
Facsimile No.: (212) 525-6875
Attention: Treasurer
with a copy to:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(d) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid, except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of
which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders
and is not separately transferable from the Trust Securities.
SECTION 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in
Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
REPUBLIC NEW YORK CORPORATION
By: _______________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee
By: ________________________________
Name:
Title:
EXHIBIT 5.1
[Letterhead of William F. Rosenblum, Jr.]
April 21, 1997
The Board of Directors
Republic New York Corporation
452 Fifth Avenue
New York, New York 10018
Re: Republic New York Corporation
Registration Statement on Form S-4
File No. 333-20409
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-4 (the "Registration Statement") of Republic New York
Corporation, a Maryland Corporation (the "Company") and Republic New York
Capital I, a Delaware statutory business trust (the "Trust"), relating to
(i) the issuance by the Trust of $150,000,000 aggregate Liquidation Amount
of the Trust's 7-3/4% Capital Trust Pass-through Securities sm
("TruPS" sm) (the "Exchange Capital Securities") registered pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), in exchange
for up to $150,000,000 aggregate Liquidation Amount of the Trust's
outstanding 7-3/4% Capital Trust Pass-through Securities sm
("TruPS" sm)(the "Old Capital Securities");(ii) the issuance by the
Company to the Trust of $154,640,000 aggregate principal amount of the
Company's 7-3/4% Junior Subordinated Debt Securities (the "Exchange Junior
Subordinated Debt Securities") registered pursuant to the Securities Act,
in exchange for up to $154,640,000 aggregate principal amount of the
Company's outstanding 7-3/4% Junior Subordinated Debt Securities (the "Old
Junior Subordinated Debt Securities"); and (iii) the Company's guarantee
(the "Exchange Guarantee"), which guarantees the payment of Distributions
and payments on liquidation or redemption of the Exchange Capital
Securities, registered pursuant to the Securities Act, in exchange for the
guarantee (the "Old Guarantee") which guarantees the payment of
Distributions and payments on liquidation or redemption of the Old Capital
Securities. The Exchange Capital Securities are to be issued pursuant to an
Amended and Restated Declaration of Trust dated as of November 27, 1996
(the "Declaration") between the Company, as Depositor, Bankers Trust
(Delaware), as Delaware Trustee, Bankers Trust Company as Property Trustee,
and the Administrative Trustees named therein; the Exchange Junior
Subordinated Debt Securities are to be issued pursuant to an Indenture
dated as of November 27, 1996 (the "Indenture") between the Company and
Bankers Trust Company, as Trustee; and the New Guarantee is to be issued
pursuant to the Guarantee Agreement dated as of November 27, 1996 (the
"Guarantee Agreement") between the Company and Bankers Trust Company, as
Guarantee Trustee. The Exchange Capital Securities, the Exchange Junior
Subordinated Debt Securities and the Exchange Guarantee are collectively
referred to herein as the "Exchange Securities".
<PAGE>
Board of Directors
Republic New York Corporation
April 21, 1997
Page 2
I am Senior Vice President and Deputy General Counsel of the Company as
well as Senior Vice President and Senior Deputy General Counsel of the
Company's principal subsidiary, Republic National Bank of New York (the
"Bank").
In my capacity as Deputy General Counsel, I have been involved in the
preparation of the Registration Statement relating to the offering of the
Exchange Securities, the Declaration, the Indenture, the Guarantee
Agreement and all other matters relating to the foregoing documents and the
transactions contemplated thereby. For the purposes of this opinion, I have
examined the charter and By-Laws of the Company and the Bank, the
Indenture, the Declaration and the Guarantee Agreement. In addition, I have
examined all such corporate records and other documents relating to each of
the foregoing entities and such certificates of public officials, officers
of the Company and other persons and have satisfied myself as to such other
matters as I have deemed necessary and relevant in order to render this
opinion. In addition, I have had oral conferences with such officers of the
Company and the Bank as I have deemed necessary and relevant with respect
to material factual matters which have not been independently established
by me.
Based upon the foregoing and having regard for such legal considerations as
I deem relevant, I am of the opinion that:
1. The Company is a duly organized and validly existing Company in
good standing pursuant to the laws of the State of Maryland and is duly
registered as a bank holding company in accordance with 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; the Bank is a duly organized and validly existing
national banking association pursuant to the laws of the United States of
America, continues to hold a valid certificate to do business as such and
has full power and authority to conduct its business as such; and each of
the Company and the Bank, except as set forth in the Registration
Statement, 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 and 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 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;
2. The Bank is duly authorized, and the Company is duly qualified as
a foreign corporation, to do business and is in good standing in all
jurisdictions in which such authorization or qualification is required and
in which the failure to be so authorized or to qualify, as the case may be,
could, in the aggregate, have any material adverse effect upon the
business, condition or properties of each of the Company or the Bank and
their respective subsidiaries taken as a whole;
3. 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 all liens, encumbrances and security interests;
<PAGE>
Board of Directors
Republic New York Corporation
April 21, 1997
Page 3
4. The Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and constitutes a legal, valid and binding
instrument enforceable against the Company 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 creditor's 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 a
proceeding in equity or at law; the Exchange Junior Subordinated Debt
Securities have been duly and validly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered against surrender and cancellation of a like amount of Old Junior
Subordinated Debt Securities in the manner described in the Registration
Statement, the Exchange Junior Subordinated Debt Securities will constitute
legal, valid and binding 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 creditor's rights generally
from time to time in effect of by general equitable principles, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
5. The Exchange Guarantee has been duly authorized by all requisite
corporate action and, when executed as specified in the Guarantee Agreement
and delivered against surrender and cancellation of the Old Guarantee in
the manner described in the Registration Statement, the Exchange Guarantee
will constitute the valid and binding obligation 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 creditor's rights generally from time to time in effect of by general
equitable principles, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether such enforceability is considered in a proceeding in equity or at
law;
I am an attorney admitted to practice in the State of New York and the
opinions stated herein are limited to the laws of the United States and the
State of New York. I have not made any independent investigation of the
laws of the State of Maryland. Therefore, insofar as my opinion pertains to
matters of Maryland law, I have relied upon the opinion of Piper & Marbury
dated April 21, 1997, a copy of which has been furnished to you the date
hereof. The opinion of Piper & Marbury is satisfactory in form and
substance to me, and such firm is counsel of good standing whom I believe
to be reliable.
I hereby consent to your filing of this opinion as an exhibit to the
Registration Statement, and to the reference to me under the caption
"Validity of the New Securities" contained in the Prospectus included
therein.
Very truly yours,
WILLIAM F. ROSENBLUM, JR.
William F. Rosenblum, Jr.
[Letterhead of Potter Anderson & Carroon]
April 21, 1997
To Each of the Persons Listed
on Schedule I Attached Hereto
Re: Republic New York Capital I 7 3/4% Capital
Trust Pass-through Securities sm (TruPS sm)
-------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Republic New York
Capital I, a Delaware business trust (the "Trust") in connection with the
issuance of its 7 3/4% Capital Trust Pass-through Securities sm (TruPS sm)
(the "Capital Securities") and common securities (the "Common Securities")
in connection with the Amended and Restated Declaration of Trust (the
"Trust Agreement") dated as of November 27, 1996 by and among Republic New
York Corporation, as Depositor, Bankers Trust (Delaware), as Delaware
Trustee, Bankers Trust Company, as Property Trustee, and the Administrative
Trustees named therein. Initially capitalized terms used herein and not
otherwise defined are used herein as defined in the Trust Agreement.
For purposes of giving the opinions hereinafter set forth, we have
examined only the following documents and have conducted no independent
factual investigation of our own:
1. The Certificate of Trust for the Trust, dated as of November
21, 1996 (the "Certificate"), as filed in the Office of the
Secretary of State of the State of Delaware (the "Secretary
of State") on November 21, 1996;
<PAGE>
To each of the persons on
Schedule I attached hereto
April 21, 1997
Page 2
2. The original trust agreement of trust of the Trust, dated as
of November 21, 1996, by and among Republic New York
Corporation, as Depositor, Bankers Trust (Delaware), as
Delaware Trustee and the Administrative Trustees named
therein (the "Original Trust Agreement");
3. The Trust Agreement;
4. A Certificate of Good Standing for the Trust, dated April
21, 1997 obtained from the Secretary of State;
5. The Registration Statement on Form S-4, as amended, (the
"Registration Statement"), including a prospectus with
respect to the Trust (the "Prospectus"), relating to, among
other things, an Exchange Offer (the "Exchange Offer")
involving the 7 3/4% Capital Trust Pass-through Securities
sm ("TruPS" sm) of the Trust representing preferred,
undivided beneficial interests in the assets of the Trust
(each, an "Exchange Security" and collectively, the
"Exchange Securities" to be offered in exchange for the
presently outstanding 7 3/4% Capital Trust Pass-through
Securities sm ("TruPS" sm) of the Trust (the "Old Capital
Securities")), filed by the Depositor and the Trust with the
Securities and Exchange Commission.
As to certain facts material to the opinions expressed herein,
we have relied upon the representations and warranties contained in the
documents examined by us all of which we have assumed to be true, complete
and accurate in all material respects. The documents referred to in
paragraphs 1, 2, 3 and 5 above are collectively referred to as the
"Agreements."
Based upon the foregoing, and upon examination of such
questions of law of the State of Delaware as we have considered necessary
or appropriate, and subject to the assumptions, qualifications, limitations
and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust
Act.
2. The Exchange Securities, upon issuance pursuant to the
Exchange Offer, will represent valid, and, subject to
<PAGE>
To each of the persons on
Schedule I attached hereto
April 21, 1997
Page 3
the qualificaitons set forth in number 3 below, fully paid and
non-assessable undivided beneficial interests in the assets
of the Trust.
3. The Holders of Exchange Securities, as beneficial owners of
Exchange Securities 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,
except that the Holders of the Exchange Securities may be
obligated to (a) provide indmnity and/or security in
connection with and pay taxes or govenmental charges arising
from transfers or exchanges of certificates representing
Trust Securities and the issuance of replacement
certificates representing Trust Securities, 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 Trust Agreement.
All of the foregoing opinions contained herein are subject to the
following assumptions, qualifications, limitations and exceptions:
a. The foregoing opinions are limited to the laws of the
State of Delaware presently in effect, excluding the
securities laws thereof. We have not considerd and
express no opinion on the laws of any other
jurisdiction, including, without limitation, federal
laws and rules and regulations relating thereto.
b. We have assumed the due execution and delivery by each
party listed as a party to each document examined by
us. We have assumed further the due authorization by
each party thereto (exclusive of the Trust) of each
document examined by us, and that each of such parties
(exclusive of the Trust) has the full corporate, or
trust or banking, power, authority, and legal right to
execute, deliver and perform each such document. We
have also assumed that each of the parties to each of
the Agreements (exclusive of the Trust and the
Administrative Trustees) is a corporation, bank,
national banking association or trust company, validly
existing and in good standing under the laws of their
respective jurisdictions or organization and that the
Agreements to which they are a party do not result in
the breach of the terms of, and do not contravene their
respective constituent documents, and contractual
restriciton binding on them or any law, rule or
regulation applicable to them. In addition, we have
assumed
<PAGE>
To each of the persons on
Schedule I attached hereto
April 21, 1997
Page 4
the legal capacity of any natural persons who are parties
to any of the documents examined by us.
c. We have assumed that all signatures on documents
examined by us are genuine, that all documents
submitted to us as originals are authentic and that all
documents submitted to us as copies confrom with the
originals.
d. We have assumed that the Original Trust Agreement and
the Trust Agreement collectively, constitute the entire
agreement among each of the respective parties thereto
with respect to the subject matter thereof, including
with respct to the creatiosn, operation, dissolution
and winding up of the Trust and that the Trust
Agreement and the Certificate are in full force and
effect.
e. We have assumed that no event set forth in Article 9 of
the Trust Agreement has occurred.
f. We have assumed that the Exchange Securities willl be
issued and exchanged in accordance with the Trust
Agreement and the Prospectus. We have further assumed
the receipt of each Person to whom an Exchange Security
is to be issued by the Trust of a Certificate for such
Exchange Security and the exchange by it of an
equivalent liquidation amount of Old Securities in
accordance with the Trust Agreement and the Prospectus.
g. We note that we have not participated in the
preparation, and do not assume responsibility for the
contents, of the Registration Statement and the
Prospectus.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading
"Validity of Exchange Securities" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the
Securties Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Potter Anderson & Carroon
<PAGE>
SCHEDULE I
REPUBLIC NEW YORK CORPORATION
REPUBLIC NEW YORK CAPITAL I
[Letterhead of Simpson Thacher & Bartlett]
April 21, 1997
Re: Offer to Exchange 7 3/4% Capital Trust Pass-
through Securities for Outstanding
7 3/4% Capital Trust Pass-through Securities
--------------------------------------------
Republic New York Corporation
452 Fifth Avenue
New York, New York 10018
Republic New York Capital I
c/o Republic New York Corporation
452 Fifth Avenue
New York, New York 10018
Ladies and Gentlemen:
We have acted as special tax counsel ("Tax Counsel") to Republic
New York Corporation, a Maryland corporation (the "Company"), and Republic
New York Capital I, a statutory business trust organized under the Business
Trust Act of the State of Delaware (the "Trust"), in connection with the
preparation and filing by the Company and the Trust with the Securities and
Exchange Commission (the "Commission") of a Registration Statement on Form
S-4(as amended, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), registering the exchange (referred
to collectively herein as the "Exchange"), of: (i) up to $150,000,000
aggregate liquidation amount of 7 3/4% Capital Trust Pass-through
Securities (the "Exchange Capital
<PAGE>
-2- April 21, 1997
Securities"), which will have been registered under the Securities Act
pursuant to the Registration Statement, for a like amount of the Trust's
outstanding 7 3/4% Capital Trust Pass-through Securities (the "Old Capital
Securities"); (ii) the Company's guarantee (which is set forth in the
Guarantee Agreement, dated November 27, 1996, between the Company and
Bankers Trust Company, as trustee (the "Old Guarantee Trustee")) of the
payment of distributions and payments upon liquidation or redemption of the
Trust Securities (the "Old Guarantee") for a like guarantee (which will be
set forth in a new Guarantee Agreement between the Company and Bankers
Trust Company, as trustee (the "Exchange Guarantee Trustee")) of the Trust
Securities (the "Exchange Guarantee"), which will have been registered
under the Securities Act pursuant to the Registration Statement; and (iii)
all of the Company's outstanding 7 3/4% Junior Subordinated Debt Securities
(the "Old Junior Subordinated Debt Securities") for a like aggregate
principal amount of 7 3/4% Junior Subordinated Debt Securities (the
"Exchange Junior Subordinated Debt Securities"), which will have been
registered under the Securities Act pursuant to the Registration Statement.
All capitalized terms used in this opinion letter and not
otherwise defined herein shall have the meaning ascribed to such terms in
the Registration Statement.
In delivering this opinion letter, we have reviewed and relied
upon: (i) the Registration Statement; (ii) the Indenture, dated as of
November 27, 1996 (the "Indenture"), between the Company and Bankers Trust
Company, as trustee (the "Indenture Trustee"); (iii) forms of the Old
Junior Subordinated Debt Securities and the Exchange Junior Subordinated
Debt Securities; (iv) the Amended and Restated
<PAGE>
-3- April 21, 1997
Declaration of Trust, dated as of November 27, 1996 (the "Declaration"),
among the Company, as Depositor, Bankers Trust Company, as the initial
Property Trustee, Bankers Trust (Delaware), as the initial Delaware Trustee
and the initial Administrative Trustees named therein; (v) the Old
Guarantee and a form of the Exchange Guarantee; and (vi) forms of the Trust
Securities. Further, we have relied upon certain other statements and
representations contained in the Company's letter of representations dated
November 27, 1996. We have also examined and relied upon the originals or
copies, certified or otherwise identified to our satisfaction, of such
records of the Company and the Trust and such other documents, certificates
and records as we have deemed necessary or appropriate as a basis for the
opinions set forth herein.
In our examination of such material, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity to original documents of all copies
of documents submitted to us. In addition, we also have assumed that (i)
the transactions related to the original issuance of the Old Junior
Subordinated Debt Securities, the Old Capital Securities and the Common
Securities were consummated in accordance with the terms of the documents
and forms of documents described herein and (ii) the Exchange will be
consummated in accordance with the terms of such documents and forms of
documents.
<PAGE>
-4- April 21, 1997
On the basis of the foregoing and assuming that the Trust was
formed and will be maintained in compliance with the terms of the
Declaration, we hereby confirm (i) our opinions set forth in the
Registration Statement under the caption "Certain Federal Income Tax
Consequences" and (ii) that, subject to the qualifications set forth
therein, the discussion set forth in the Registration Statement under such
caption is an accurate summary of the United States federal income tax
matters described therein.
We express no opinion with respect to the transactions referred to
herein or in the Registration Statement other than as expressly set forth
herein. Moreover, we note that there is no authority directly on point
dealing with securities such as the Trust Securities or transactions of the
type described herein and that our opinion is not binding on the Internal
Revenue Service or the courts, either of which could take a contrary
position. Nevertheless, we believe that if challenged, the opinions we
express herein would be sustained by a court with jurisdiction in a
properly presented case.
Our opinion is based upon the Code, the Treasury regulations
promulgated thereunder and other relevant authorities of law, all as in
effect on the date hereof. Consequently, future changes in the law may
cause the tax treatment of the transactions referred to herein to be
materially different from that described above.
We are admitted to practice law only in the State of New York and
the opinions we express herein are limited solely to matters governed by
the federal law of the United States.
<PAGE>
-5- April 21, 1997
We hereby consent to the use of this opinion for filing as Exhibit
8 to the Registration Statement and the use of our name in the Registration
Statement under the captions "Certain Federal Income Tax Consequences" and
"Validity of the Exchange Securities".
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
EXHIBIT 12
<TABLE>
<CAPTION>
CALCULATION OF RATIOS OF EARNINGS TO
FIXED CHARGES-CONSOLIDATED
Years Ended December 31,
---------------------------------------------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
($ In thousands)
<S> <C> <C> <C> <C> <C>
Excluding Interest on Deposits
Fixed Charges:
Interest on long-term debt and short-term
borrowings $ 588,693 $ 489,697 $ 499,065 $ 467,841 $ 513,322
One-third of rent expense 14,495 13,651 14,412 10,859 10,252
------------ ------------ ------------ ------------ ------------
Total fixed charges $ 603,188 $ 503,348 $ 513,477 $ 478,700 $ 523,574
============ ============ ============ ============ ============
Earnings:
Income before income taxes $ 590,546 $ 398,115 $ 492,366 $ 451,358 $ 347,269
Fixed charges 603,188 503,348 513,477 478,700 523,574
------------ ------------ ------------ ------------ ------------
Total earnings $1,193,734 $ 901,463 $1,005,843 $ 930,058 $ 870,843
============ ============ ============ ============ ============
Ratio of earnings to fixed charges excluding
interest on deposits 1.98x 1.79x 1.96x 1.94x 1.66x
Including Interest on Deposits
Fixed Charges:
Interest on long-term debt, short-term
borrowings and deposits $1,870,898 $1,627,772 $1,326,855 $1,157,075 $1,318,228
One-third of rent expense 14,495 13,651 14,412 10,859 10,252
------------ ------------ ------------ ------------ ------------
Total fixed charges $1,885,393 $1,641,423 $1,341,267 $1,167,934 $1,328,480
============ ============ ============ ============ ============
Earnings:
Income before income taxes $ 590,546 $ 398,115 $ 492,366 $ 451,358 $ 347,269
Fixed charges 1,885,393 1,641,423 1,341,267 1,167,934 1,328,480
------------ ------------ ------------ ------------ ------------
Total earnings $2,475,939 $2,039,538 $1,833,633 $1,619,292 $1,675,749
============ ============ ============ ============ ============
Ratio of earnings to fixed charges including
interest on deposits 1.31x 1.24x 1.37x 1.39x 1.26x
For the purpose of computing the consolidated ratio of earnings to fixed
charges, earnings represent consolidated income before income taxes plus
fixed charges. Fixed charges excluding interest on deposits consist of
interest on long-term debt and short-term borrowings and one-third of
rental expense (which is deemed representative of the interest factor).
Fixed charges including interest on deposits consist of the foregoing items
plus interest on deposits.
</TABLE>
EXHIBIT 99.1
LETTER OF TRANSMITTAL
REPUBLIC NEW YORK CAPITAL I
OFFER TO EXCHANGE ITS
7 3/4% CAPITAL TRUST PASS-THROUGH SECURITIES sm (TruPS sm)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
7 3/4% CAPITAL TRUST PASS-THROUGH SECURITIES sm (TRUPS sm)
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS
DATED , 1997
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1997, UNLESS THE OFFER IS EXTENDED.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
BANKERS TRUST COMPANY
By mail: By hand: By overnight mail:
BT Services Tennessee, Inc. Bankers Trust Company BT Services Tennessee, Inc.
Reorganization Unit Corporate Trust and Reorganization Unit
P.O. Box 292737 Agency Unit 648 Grassmere Park Dr.
Nashville, TN 37229-2737 123 Washington Street Nashville, TN 37211
First Floor Window
New York, NY 10008
For information call:
(800) 735-7777
Confirm: (615)835-3572
Facsimile: (615) 835-3701
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO
A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID
DELIVERY. THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE
THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned acknowledges that he or she has received the
Prospectus, dated April ____, 1997 (the "Prospectus"), of Republic New York
Capital (the "Trust") and Republic New York Corporation("Republic" or the
"Corporation"), and this Letter of Transmittal (the "Letter of
Transmittal"), which together constitute the Trust's and the Corporation's
offer (the "Exchange Offer") to exchange up to $150,000,000 aggregate
Liquidation Amount of the Trust's 7 3/4% Capital Trust Pass-through
Securities sm (TruPS sm)(the "Exchange Capital Securities") for a like
Liquidation Amount of its outstanding 7 3/4% Capital Trust Pass-through
Securities sm (TruPS sm)(the "Old Capital Securities" and, together with
the Exchange Capital Securities, the "Capital Securities"). The terms of
the Exchange Capital Securities are identical in al material respects to
the Old Capital Securities, except the Exchange Capital Securities have
been registered pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), and, therefore, will not bear legends restricting their
transfer and will not contain certain provisions providing for an increase
in the Distribution rate thereon. The term "Expiration Date" shall mean
5:00 p.m., New York City time, on May _________, 1997, unless the Exchange
Offer is extended as provided in the Prospectus, in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended. Capitalized terms used but not defined herein shall have
the same meaning given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed by holders of Old
Capital Securities (as defined below) either (i) if Old Capital Securities
are forwarded herewith or (ii) if tender of Old Capital Securities is to be
made by book-entry transfer to an account maintained by Bankers Trust
Company (the "Exchange Agent") at The Depository Trust Company ("DTC")
pursuant to the procedures set forth in "The Exchange Offer--Procedures for
Tendering Old Capital Securities" in the Prospectus.
Holders of Old Capital Securities whose certificates (the
"Certificates") for such Old Capital Securities are not immediately
available or who cannot deliver their Certificates and all other required
documents to the Exchange Agent prior to 5:00 p.m., New York City time, on
the Expiration Date or who cannot complete the procedures for book-entry
transfer on a timely basis must tender their Old Capital Securities
according to the guaranteed delivery procedures set forth in "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus.
See Instruction 1.
The term "Holder" with respect to the Exchange Offer means any
person in whose name Old Capital Securities are registered on the books of
the Trust or any other person who has obtained a properly completed bond
power from the registered holder. The undersigned has completed, executed
and delivered this Letter of Transmittal to indicate the action the
undersigned desires to take with respect to the Exchange Offer. Holders who
wish to tender their Old Capital Securities must complete this Letter of
Transmittal in its entirety.
<PAGE>
<TABLE>
<CAPTION>
PLEASE READ THIS ENTIRE LETTER OF TRASMITTAL CAREFULLY
BEFORE COMPLETING THIS LETTER OF TRANSMITTAL
ALL TENDERING HOLDERS COMPLETE THIS BOX
- -------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- -------------------------------------------------------------------------------------------------------
LIQIDATION AMOUNT
OF OLD CAPITAL
SECURITIES NUMBER OF
TENDERED (IF BENEFICIAL
PLEASE PRINT NAME AND OLD CAPITAL PRINCIPAL HOLDERS FOR
ADDRESS OF REGISTERED SECURITIES AMOUNT WHOM OLD
HOLDER TENDERED OF OLD CAPITAL CAPITAL
(PLEASE FILL IN CERTIFICATE (ATTACH ADDITIONAL LIST SECURITIES IS SECURITIES
IF BLANK) NUMBER(S)*<F1> IF NECESSARY) LESS THAN ALL)**<F2> ARE HELD
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------
TOTAL AMOUNT TENDERED:
- -------------------------------------------------------------------------------------------------------
<FN>
<F1>* Need not be completed by book-entry holders.
<F2>** Old Capital Securities may be tendered in whole or in part in
denominations of $100,000 Liquidation Amount and integral multiples of
$1,000 in excess thereof; provided that if any Old Capital Securities
are tendered for exchange in part, the untendered Liquidation Amount
thereof must be $100,000 or any integral multiple of $1,000 in excess
thereof. All Old Capital Securities held shall be deemed tendered
unless a lesser number is specified in this column.
</FN>
</TABLE>
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_] CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED
BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE
EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING (ONLY
PARTICIPANTS IN DTC MAY DELIVER CAPITAL SECURITIES BY BOOK-ENTRY
TRANSFER (SEE INSTRUCTION 1)):
Name of Tendering Institution:----------------------------------------
DTC Account Number:---------------------------------------------------
Transaction Code Number:----------------------------------------------
[_] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED
DELIVERY IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO
THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING (SEE INSTRUCTION
5):
Name of Registered Holders(s):----------------------------------------
Window Ticket Number (if any):----------------------------------------
Date of Execution of Notice of Guaranteed Delivery:-------------------
Name of Institution which Guaranteed Delivery:------------------------
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution:----------------------------------------
DTC Account Number:---------------------------------------------------
Transaction Code Number:----------------------------------------------
[_] CHECK HERE IF OLD CAPITAL SECURITIES TENDERED BY BOOK-ENTRY TRANSFER BUT
NOT EXCHANGED ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER
SET FORTH ABOVE.
[_] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER
TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE
10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name: ----------------------------------------------------------------
Address:--------------------------------------------------------------
Area Code and Telephone Number:_______________________________________
Contact Person: ______________________________________________________
2
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to the Trust and the Corporation the
above described aggregate Liquidation Amount of Old Capital Securities in
exchange for a like aggregate Liquidation Amount of Exchange Capital
Securities.
Subject to and effective upon the acceptance for exchange of all or
any portion of the Old Capital Securities tendered herewith in accordance
with the terms and conditions of the Exchange Offer (including, if the
Exchange Offer is extended or amended, the terms and conditions of any such
extension or amendment), the undersigned hereby sells, assigns and
transfers to or upon the order of the Trust all right, title and interest
in and to such Old Capital Securities as are being tendered herewith. The
undersigned hereby irrevocably constitutes and appoints the Exchange Agent
as its agent and attorney-in-fact (with full knowledge that the Exchange
Agent is also acting as agent of the Corporation and the Trust in
connection with the Exchange Offer) with respect to the tendered Old
Capital Securities, with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest), subject
only to the right of withdrawal described in the Prospectus, to (i) deliver
Certificates for Old Capital Securities together with all accompanying
evidences of transfer and authenticity to, or upon the order of, the Trust,
upon receipt by the Exchange Agent, as the undersigned's agent, of the
Exchange Capital Securities to be issued in exchange for such Old Capital
Securities, (ii) present Certificates for such Old Capital Securities for
transfer, and to transfer the Old Capital Securities on the books of the
Trust, and (iii) receive for the account of the Trust all benefits and
otherwise exercise all rights of beneficial ownership of such Old Capital
Securities, all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED
HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER
THE OLD CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE
ACCEPTED FOR EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND
UNENCUMBERED TITLE THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS,
CHARGES AND ENCUMBRANCES, AND THAT THE OLD CAPITAL SECURITIES TENDERED
HEREBY ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED
WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY
THE CORPORATION, THE TRUST OR THE EXCHANGE AGENT TO BE NECESSARY OR
DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE OLD
CAPITAL SECURITIES TENDERED HEREBY. THE UNDERSIGNED HAS READ AND AGREES TO
ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old
Capital Securities tendered hereby should be printed above, if they are not
already set forth above, as they appear on the Certificates representing
such Old Capital Securities. The Certificate number(s) and the Old Capital
Securities that the undersigned wishes to tender should be indicated in the
appropriate boxes above.
If any tendered Old Capital Securities are not exchanged pursuant to
the Exchange Offer for any reason, or if Certificates are submitted for
more Old Capital Securities than are tendered or accepted for exchange,
Certificates for such nonexchanged or nontendered Old Capital Securities
will be returned (or, in the case of Old Capital Securities tendered by
book-entry transfer, such Old Capital Securities will be credited to an
account maintained at DTC), without expense to the tendering holder,
promptly following the expiration or termination of the Exchange Offer.
The undersigned understands that tender of Old Capital Securities
pursuant to any one of the procedures described in "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus
and in this Letter of Transmittal, and the Corporation's and the Trust's
acceptance for exchange of such tendered Old Capital Securities, will
constitute a binding agreement between the undersigned, the Corporation and
the Trust upon the terms and subject to the conditions of the Exchange
Offer. The undersigned
3
<PAGE>
recognizes that, under certain circumstances set forth in the Prospectus,
the Corporation and the Trust may not be required to accept for exchange
any of the Old Capital Securities tendered hereby.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the
Exchange Capital Securities be issued in the name(s) of the undersigned or,
in the case of book-entry transfer of Old Capital Securities, that such
Exchange Capital Securities be credited to the account indicated above
maintained at DTC. If applicable, substitute Certificates representing Old
Capital Securities not exchanged or not accepted for exchange will be
issued to the undersigned or, in the case of a book-entry transfer of Old
Capital Securities, will be credited to the account indicated above
maintained at DTC. Similarly, unless otherwise indicated under "Special
Delivery Instructions," please deliver Exchange Capital Securities to the
undersigned at the address shown below the undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF THE CORPORATION OR THE TRUST, (II) ANY
EXCHANGE CAPITAL SECURITIES TO BE RECEIVED BY THE UNDERSIGNED ARE BEING
ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS, (III) THE UNDERSIGNED HAS
NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN A
DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF EXCHANGE CAPITAL
SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER, AND (IV) IF THE
UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN, AND
DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH EXCHANGE CAPITAL SECURITIES. BY TENDERING OLD
CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER
OF TRANSMITTAL, A HOLDER OF OLD CAPITAL SECURITIES WHICH IS A BROKER-DEALER
REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED
BY THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND
EXCHANGE COMMISSION TO THIRD PARTIES, THAT (A) SUCH OLD CAPITAL SECURITIES
HELD BY THE BROKER-DEALER ARE HELD ONLY AS A NOMINEE OR (B) SUCH OLD
CAPITAL SECURITIES WERE ACQUIRED BY SUCH BROKER-DEALER FOR ITS OWN ACCOUNT
AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT
WILL DELIVER A PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME)
MEETING THE REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY
RESALE OF SUCH EXCHANGE CAPITAL SECURITIES (PROVIDED THAT, BY SO
ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS, SUCH BROKER-DEALER WILL NOT
BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE
SECURITIES ACT).
THE CORPORATION AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE
PROVISIONS OF THE REGISTRATION AGREEMENT, THE PROSPECTUS, AS IT MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING
BROKER-DEALER (AS DEFINED BELOW) IN CONNECTION WITH RESALES OF EXCHANGE
CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR OLD CAPITAL SECURITIES, WHERE
SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH PARTICIPATING
BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES
OR OTHER TRADING ACTIVITIES, FOR A PERIOD ENDING 180 DAYS AFTER THE
EXPIRATION DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES
DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH EXCHANGE CAPITAL
SECURITIES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER. IN
THAT REGARD, EACH BROKER-DEALER WHO ACQUIRED OLD CAPITAL SECURITIES FOR ITS
OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER"), BY TENDERING SUCH OLD CAPITAL SECURITIES
AND EXECUTING THIS LETTER OF TRANSMITTAL, AGREES THAT, UPON RECEIPT OF
NOTICE FROM THE CORPORATION OR THE
4
<PAGE>
TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH
MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE
PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR WHICH CAUSES THE PROSPECTUS TO
OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS
CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE
OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION AGREEMENT,
SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE OF EXCHANGE CAPITAL
SECURITIES PURSUANT TO THE PROSPECTUS UNTIL THE CORPORATION AND THE TRUST
HAVE AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR
OMISSION AND HAVE FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED
PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR THE CORPORATION OR THE
TRUST HAS GIVEN NOTICE THAT THE SALE OF THE EXCHANGE CAPITAL SECURITIES MAY
BE RESUMED, AS THE CASE MAY BE. IF THE CORPORATION OR THE TRUST GIVES SUCH
NOTICE TO SUSPEND THE SALE OF THE EXCHANGE CAPITAL SECURITIES, IT SHALL
EXTEND THE 180 DAY PERIOD REFERRED TO ABOVE DURING WHICH PARTICIPATING
BROKER-DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN CONNECTION WITH THE
RESALE OF EXCHANGE CAPITAL SECURITIES BY THE NUMBER OF DAYS DURING THE
PERIOD FROM AND INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO AND
INCLUDING THE DATE WHEN PARTICIPATING BROKER-DEALERS SHALL HAVE RECEIVED
COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO PERMIT
RESALES OF THE EXCHANGE CAPITAL SECURITIES OR TO AND INCLUDING THE DATE ON
WHICH THE CORPORATION OR THE TRUST GIVES NOTICE THAT THE SALE OF EXCHANGE
CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accrued interest on such Old Capital
Securities for any period from and after the last Interest Payment Date to
which interest has been paid on such Old Capital Securities prior to the
original issue date of the Exchange Capital Securities, and the undersigned
waives the right to receive any interest on such Old Capital Securities
accrued from and after such Interest Payment Date.
Except as stated in the Prospectus, this tender is irrevocable.
5
<PAGE>
HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE 13)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Old Capital Securities hereby tendered or on a
security position listing, or by any person(s) authorized to become the
registered holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certifications and other information
as may be required by the Trust or the Trustee for the Old Capital
Securities to comply with the restrictions on transfer applicable to the
Old Capital Securities). If signature is by an attorney-in-fact, trustee,
officer of a corporation or another acting in a fiduciary capacity or
representative capacity, please set forth the signer's full title. See
Instruction 5.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Date: ________________________, 1997
Name(s):__________________________________________________________________
(PLEASE PRINT)
Capacity (full title):________________________________________________________
Address ______________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:______________________________________________
Tax Identification or Social Security Number: ________________________________
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 2 AND 5)
.-------------------------------------------------------------------------.
(AUTHORIZED SIGNATURE)
Date: ________________________, 199__
Name of Firm:________________________________________________________________
Capacity (full title):_____________________________________________________
(PLEASE PRINT)
Address:______________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:_______________________________________________
6
<PAGE>
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the Exchange Capital Securities are to be
issued in the name of someone other than the registered holder of the Old
Capital Securities whose name(s) appear(s) above.
Issue
[__] Exchange Capital Securities and/or
[__] Old Capital Securities not tendered
to:
Name(s):----------------------------------------------------------------------
Address:----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and
Telephone Number: -----------------------------------------------------------
Tax Identification or Social Security Number(s): _____________________________
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if Exchange Capital Securities are to be sent to
someone other than the registered holder of the Old Capital Securities
whose name(s) appear(s) above, or to such registered holder(s) at an
address other than that shown above.
Mail
[___] Exchange Capital Securities
[___] Old Capital Securities not tendered
to:
Name(s):---------------------------------------------------------------------
Address:---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and
Telephone Number:------------------------------------------------------------
Tax Identification or Social Security Numbers(s):-----------------------------
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be completed either
if (a) Certificates are forwarded herewith or (b) tenders are to be made
pursuant to the procedures for tender by book-entry transfer set forth in
"The Exchange Offer--Procedures for Tendering Old Capital Securities" in
the Prospectus. Certificates for Old Capital Securities being tendered, or
timely confirmation of a book-entry transfer of such Old Capital Securities
into the Exchange Agent's account at DTC, as well as this Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed,
with any required signature guarantees, and any other documents required by
this Letter of Transmittal, must be received by the Exchange Agent at its
address set forth herein prior to 5:00 p.m., New York City time, on the
Expiration Date. Old Capital Securities may be tendered in whole or in part
in the Liquidation Amount of $100,000 (100 Capital Securities) and integral
multiples of $1,000 in excess thereof; provided that, if any Old Capital
Securities are tendered for exchange in part, the untendered Liquidation
Amount thereof must be $100,000 (100 Capital Securities) or any integral
multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) whose
Old Capital Securities are not immediately available or (ii) who cannot
deliver their Old Capital Securities, this Letter of Transmittal and all
other required documents to the Exchange Agent prior to 5:00 p.m. New York
City time, on the Expiration Date or (iii) who cannot complete the
procedures for delivery by book-entry transfer on a timely basis may tender
their Old Capital Securities by properly completing and duly executing a
Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in "The Exchange Offer--Procedures for Tendering Old
Capital Securities" in the Prospectus. Pursuant to such procedures: (i)
such tender must be made by or through an Eligible Institution (as defined
below); (ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Corporation and
the Trust, must be received by the Exchange Agent prior to 5:00 p.m., New
York City time, on the Expiration Date; and (iii) the Certificates (or a
Book-Entry Confirmation (as defined in the Prospectus)) representing all
tendered Old Capital Securities, in proper form for transfer, together with
a Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees and any other documents
required by this Letter of Transmittal, must be received by the Exchange
Agent within five New York Stock Exchange, Inc. trading days after the date
of execution of such Notice of Guaranteed Delivery, all as provided in "The
Exchange Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice.
As used herein and in the Prospectus, "Eligible Institution" means a firm
or other entity identified in Rule 17Ad-15 under the Exchange Act as "an
eligible guarantor institution," including (as such terms are defined
therein) (i) a bank; (ii) a broker, dealer, municipal securities broker or
dealer or government securities broker or dealer; (iii) a credit union;
(iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
securities transfer association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE
8
<PAGE>
TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY
SERVICE IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Neither the Corporation nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Letter of Transmittal (or facsimile thereof), waives any right to receive
any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the
registered holder (which term, for purposes of this
document, shall include any participant in DTC
whose name appears on a security position listing
as the owner of the Old Capital Securities) of Old
Capital Securities tendered herewith, unless such
holder has completed either the box entitled
"Special Issuance Instructions" or the box entitled
"Special Delivery Instructions" above, or
(ii) such Old Capital Securities are tendered for the account of a
firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature
(s)on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities" is inadequate, the Certificate
number(s) and/or the Liquidation Amount of Old Capital Securities and any
other required information should be listed on a separate signed schedule
which is attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the Liquidation Amount of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof;
provided that if any Old Capital Securities are tendered for exchange in
part, the untendered Liquidation Amount thereof must be $100,000 (100
Capital Securities) or any integral multiple of $1,000 in excess thereof.
If less than all the Old Capital Securities evidenced by any Certificate
submitted are to be tendered, fill in the Liquidation Amount of Old Capital
Securities which are to be tendered in the box entitled "Liquidation Amount
of Old Capital Securities Tendered (if less than all)." In such case, new
Certificate(s) for the remainder of the Old Capital Securities that were
evidenced by your old Certificate(s) will only be sent to the holder of the
Old Capital Securities, promptly after the Expiration Date. All Old Capital
Securities represented by Certificates delivered to the Exchange Agent will
be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Capital Securities
may be withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date. In order for a withdrawal to be effective on or prior to
that time, a written, telegraphic, telex or facsimile transmission of such
notice of withdrawal must be timely received by the Exchange Agent at one
of its addresses set forth above or in the Prospectus prior to 5:00 p.m.,
New York City time, on the Expiration Date. Any such notice of withdrawal
must specify the name of the person who tendered the Old Capital Securities
to be withdrawn, the aggregate Liquidation Amount of Old Capital Securities
to be withdrawn, and (if Certificates for Old Capital Securities have been
tendered) the name of the registered holder of the Old Capital Securities
as set forth on the Certificate for the Old Capital Securities, if
different from that of the person who tendered such Old Capital Securities.
If Certificates for the Old Capital Securities have been delivered or
otherwise identified to the Exchange Agent, then prior to the physical
release of such Certificates for the Old Capital Securities, the tendering
holder must submit the serial numbers shown on the particular Certificates
for the Old Capital Securities to be withdrawn and the signature on the
notice of withdrawal must be guaranteed by an Eligible Institution, except
in the case of Old Capital Securities tendered for the account of an
Eligible Institution. If Old Capital Securities have been tendered pursuant
to the procedures for book-entry transfer set forth in "The Exchange
Offer--Procedures for Tendering Old Capital Securities," the notice of
withdrawal must specify the name and number of the account at DTC to be
credited with the
9
<PAGE>
withdrawal of Old Capital Securities, in which case a notice of withdrawal
will be effective if delivered to the Exchange Agent by written,
telegraphic, telex or facsimile transmission. Withdrawals of tenders of Old
Capital Securities may not be rescinded. Old Capital Securities properly
withdrawn will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any subsequent time prior to 5:00 p.m., New
York City time, on the Expiration Date by following any of the procedures
described in the Prospectus under "The Exchange Offer--Procedures for
Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the
Corporation and the Trust, in their sole discretion, whose determination
shall be final and binding on all parties. The Corporation, the Trust, any
affiliates or assigns of the Corporation and the Trust, the Exchange Agent
or any other person shall not be under any duty to give any notification of
any irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification. Any Old Capital Securities which
have been tendered but which are withdrawn will be returned to the holder
thereof without cost to such holder promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder(s) of the
Old Capital Securities tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the Certificate(s)
without alteration, enlargement or any change whatsoever.
If any of the Old Capital Securities tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Letter
of Transmittal.
If any tendered Old Capital Securities are registered in different
name(s) on several Certificates, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal (or facsimiles thereof) as
there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons should so
indicate when signing and must submit proper evidence satisfactory to the
Corporation and the Trust, in their sole discretion, of such persons'
authority to so act.
When this Letter of Transmittal is signed by the registered owner(s)
of the Old Capital Securities listed and transmitted hereby, no
endorsement(s) of Certificate(s) or separate bond power(s) are required
unless Exchange Capital Securities are to be issued in the name of a person
other than the registered holder(s). Signature(s) on such Certificate(s) or
bond power(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Old Capital Securities listed, the Certificates
must be endorsed or accompanied by appropriate bond powers, signed exactly
as the name or names of the registered owner(s) appear(s) on the
Certificates, and also must be accompanied by such opinions of counsel,
certifications and other information as the Corporation, the Trust or the
Trustee for the Old Capital Securities may require in accordance with the
restrictions on transfer applicable to the Old Capital Securities.
Signatures on such Certificates or bond powers must be guaranteed by an
Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange Capital
Securities are to be issued in the name of a person other than the signer
of this Letter of Transmittal, or if Exchange Capital Securities are to be
sent to someone other than the signer of this Letter of Transmittal or to
an address other than that shown above, the appropriate boxes on this
Letter of Transmittal should be completed. Certificates for Old Capital
Securities not exchanged will be returned by mail or, if tendered by
book-entry transfer, by crediting the account indicated above maintained at
DTC. See Instruction 4.
7. IRREGULARITIES. The Corporation and the Trust will determine, in
their sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Old Capital Securities, which determination shall be final and
binding on all parties. The Corporation and the Trust reserve the absolute
right to reject any and all tenders determined by either of them not to be
in proper form or the acceptance of which, or exchange for, may, in the
view of counsel to the
10
<PAGE>
Corporation and the Trust, be unlawful. The Corporation and the Trust also
reserve the absolute right, subject to applicable law, to waive any of the
conditions of the Exchange Offer set forth in the Prospectus under "The
Exchange Offer--Conditions to the Exchange Offer" or any conditions or
irregularity in any tender of Old Capital Securities of any particular
holder whether or not similar conditions or irregularities are waived in
the case of other holders. The Corporation's and the Trust's interpretation
of the terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) will be final and binding. No
tender of Old Capital Securities will be deemed to have been validly made
until all irregularities with respect to such tender have been cured or
waived. Neither the Corporation, the Trust, any affiliate or assign of the
Corporation, the Trust or the Exchange Agent nor any other person shall be
under any duty to give notification of any irregularities in tenders or
incur any liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions
and requests for assistance may be directed to the Exchange Agent at its
address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and the Letter of Transmittal may be obtained from the Exchange
Agent or from your broker, dealer, commercial bank, trust company or other
nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under the U.S. Federal
income tax law, a Holder whose tendered Old Capital Securities are accepted
for exchange is required to provide the Exchange Agent with such Holder's
correct taxpayer identification number ("TIN") on the Substitute Form W-9
below. If the Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service (the "IRS") may subject the Holder or the payee to
a $50 penalty. In addition, payments to such Holders or other payees with
respect to Exchange Capital Securities exchanged pursuant to the Exchange
Offer may be subject to 31% backup withholding.
The box in Part 3 of Substitute Form W-9 may be checked if the
tendering Holder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is
checked, the Holder or other payee must also complete the Certificate of
Awaiting Taxpayer Identification Number below in order to avoid backup
withholding. Notwithstanding that the box in Part 3 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the
Exchange Agent will withhold 31% of all payments made prior to the time a
properly certified TIN is provided to the Exchange Agent. The Exchange
Agent will retain such amounts withheld during the 60 day period following
the date of the Substitute Form W-9. If the Holder furnishes the Exchange
Agent with its TIN within 60 days after the date of the Substitute Form
W-9, the amounts retained during the 60 day period will be remitted to the
holder and no further amounts shall be retained or withheld from payments
made to the Holder thereafter. If, however, the Holder has not provided the
Exchange Agent with its TIN within such 60 day period, amounts withheld
will be remitted to the IRS as backup withholding. In addition, 31% of all
payments made thereafter will be withheld and remitted to the IRS until a
correct TIN is provided.
The Holder is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the registered
owner of Old Capital Securities or of the last transferee appearing on the
transfers attached to, or endorsed on, the Old Capital Securities. If the
Old Capital Securities are registered in more than one name or are not in
the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these
backup withholding and reporting requirements. Such Holders should
nevertheless complete the Substitute Form W-9 below, and write "exempt" on
the face thereof, to avoid possible erroneous backup withholding. A foreign
person may qualify as an exempt recipient by submitting a properly
completed IRS Form W-8, signed under penalties of perjury, attesting to
that Holder's exempt status. Please consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which Holders are exempt from backup withholding.
11
<PAGE>
Backup withholding is not an additional U.S. Federal income tax.
Rather, the U.S. Federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Capital Securities have been lost, destroyed or stolen,
the holder should promptly notify the Exchange Agent. The holder will then
be instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
11. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, Exchange Capital Securities are to be
delivered to, or are to be issued in the name of, any person other than the
registered holder of the Old Capital Securities tendered, or if a transfer
tax is imposed for any reason other than the exchange of Old Capital
Securities in connection with the Exchange Offer, then the amount of any
such transfer tax (whether imposed on the registered holder or any other
persons) will be payable by the tendering holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with this
Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL
OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
12
<PAGE>
==============================================================================
PAYER'S NAME: Bankers Trust Company
==============================================================================
SUBSTITITE FORM W-9
Payer's Request
for Taxpayer
Identification
Number (TIN)
Part 1 PLEASE PROVIDED YOUR TIN IN THE BOX AT RIGHT Social Security OR Employer
AND CERTIFY BY SIGNING AND DATING BELOW. Identification Number
---------------------------
Part 2 CERTIFICATION - Under penalties of perjury, I certify that: (1) The
number shown on this form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me) and
(2) I am not subject to backup withholding because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
Revenue Service (the "IRS") that I am subject to backup withholding as
a result of a failure to report all interest or dividends, or (c) the
IRS has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS - You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to backup
withholding because of underreporting interest or dividends on your tax
return. However, if after being notified by the IRS that you are subject to
backup withholding, you received another notification from the IRS that you
are no longer subject to backup withholding, do not cross out such item
(2).
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION
OF THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID BACKUP
WITHHOLDING.
SIGNATURE_____________________________________ DATE______________
NAME (please print) ______________________________________________
ADDRESS (Please print) ___________________________________________
Part 3 - Awaiting TIN [__]
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU WITH RESPECT TO EXCHANGE
CAPITAL SECURITIES EXCHANGED PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW
THE ENCLOSED "GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9" FOR ADDITIONAL DETAILS.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either (1) I have
mailed or delivered an application to receive a taxpayer identification
number to the appropriate Internal Revenue Service Center or Social
Security Administration Office or (2) I intend to mail or deliver an
application in the near future. I understand that if I do not provide a
taxpayer identification number by the time of payment, 31% of all
reportable payments made to me will be withheld, but that such amounts will
be refunded to me if I then provide a Taxpayer Identification Number within
sixty (60) days.
Signature __________________________________________ Date __________________
Name (Please print) ________________________________________________________
Address (Please print) ______________________________________________________
13
<PAGE>
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
7 3/4% CAPITAL TRUST PASS-THROUGH SECURITIES sm (TruPS sm)
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
REPUBLIC NEW YORK CAPITAL I
FULLY AND UNCONDITIONALLY GUARANTEED
BY REPUBLIC NEW YORK CORPORATION
This Notice of Guaranteed Delivery, or one substantially
equivalent to this form, must be used for a holder of the Trust's (as
defined below) 7 3/4% Capital Trust Pass-through Securities sm (TruPS sm)
(the "Old Capital Securities") to accept the Exchange Offer (as defined
below) if (i) certificates for such holder's Old Capital Securities are not
immediately available, (ii) such holder cannot deliver its certificates for
Old Capital Securities, the Letter of Transmittal and all other required
documents to Bankers Trust Company (the "Exchange Agent") prior to 5:00
p.m., New York City time, on the Expiration Date (as defined in the
Prospectus referred to below) or (iii) the procedures for delivery by
book-entry transfer cannot be completed on a timely basis. This Notice of
Guaranteed Delivery may be delivered by hand, overnight courier or mail, or
transmitted by facsimile transmission, to the Exchange Agent. See "The
Exchange Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
BANKERS TRUST COMPANY
By mail: By hand: By overnight mail:
BT Services Tennessee, Inc. Bankers Trust Company BT Services Tennessee, Inc.
Reorganization Unit Corporate Trust and Reorganization Unit
P.O. Box 292737 Agency Unit 648 Grassmere Park Dr.
Nashville, TN 37229-2737 123 Washington Street Nashville, TN 37211
First Floor Window
New York, NY 10008
For information call:
(800) 735-7777
Confirm: (615)835-3572
Facsimile: (615) 835-3701
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED
DELIVERY VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT
CONSTITUTE A VALID DELIVERY.
Ladies and Gentlemen:
The undersigned hereby tenders to Republic New York Capital I, a
Delaware business trust (the "Issuer"), upon the terms and subject to the
conditions set forth in the Prospectus dated , 1997 (as the same may
be amended or supplemented from time to time, the "Prospectus"), and
the related Letter of Transmittal (which together constitute the "Exchange
Offer"), receipt of which is hereby acknowledged, the aggregate Liquidation
Amount of Old Capital Securities set forth below pursuant to the guaranteed
delivery procedures set forth in the Prospectus under the caption "The
Exchange Offer--Procedures for Tendering Old Capital
Securities." All capitalized terms used herein but not defined shall have
the meanings ascribed to them in the Prospectus.
The undersigned understands and acknowledges that the Exchange
Offer will expire at 5:00 p.m., New York City time, on __________, 1997,
unless extended by the Issuer. The term "Expiration Date" shall mean 5:00
p.m., New York City time, on ___________, 1997, unless the Exchange Offer
is extended as provided in the Prospectus, in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended.
<PAGE>
SIGNATURE
x_______________________ Date:__________
x_______________________ Date:
Signature(s) of Registered Holder(s)
or Authorized Signatory
Area Code and Telephone Number: ___________________________
Name(s):___________________________________________________
(Please Print)
Capacity (full title, if singing in a fiduciary or representative
capacity):
- ----------------------------------------------------------------------------
Address: ___________________________________________________________________
(Including Zip Code)
Taxpayer Identification Number or
Social Security No.: _______________________________________________________
Aggregate Liquidation Amount of
Old Capital Securities Tendered
(must be integral
multiples of $1,000): ___________________________________
Certificate Number(s) of Old Capital Securities (if
available): _____________________________________________
Aggregate Liquidation Amount
Represented by Certificate(s): $_________________________
IF TENDERED OLD CAPITAL SECURITIES WILL BE
DELIVERED BY BOOK-ENTRY TRANSFER, PRO-
VIDE THE DEPOSITORY TRUST COMPANY
("DTC") ACCOUNT NO. AND TRANSACTION CODE
NUMBER (if available):
Account No. ___________________________________________
Transaction No. _______________________________________
GUARANTEE OF DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified as an "eligible
guarantor institution; within the meaning of Rule 17Ad-15 promulgated under
the Securities Exchange Act of 1934, as amended, guarantees deposit with
the Exchange Agent of a properly completed and executed Letter of
Transmittal (pr facsimile thereof), or an Agent's Message, as well as the
certificate(s) representing all tendered Old Capital Securities in proper
form for transfer, or confirmation of the book-entry transfer of such Old
Capital Securities into the Exchange Agent's account at DTC as described in
the Prospectus under the caption "The Exchange Offer - Procedures for
Tendering Old Capital Securities - Book-Entry Transfer" and other documents
required by the Letter of Transmittal, all by 5:00 p.m., New York City
time, on the third New York Stock Exchange trading day following the
Expiration Date.
Name of Eligible Institution: _______________________________________________
Authorized Signature
Address: ____________________________ Name: _______________________________
_____________________________________ Title: ______________________________
Area Code and Telephone No.: ________ Date: _______________________________
NOTE: DO NOT SEND OLD CAPITAL SECURITIES WITH THIS NOTICE OF GUARANTEED
DELIVERY. ACTUAL SURRENDER OF OLD CAPITAL SECURITIES MUST BE MADE PURSUANT
TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF
TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
EXHIBIT 99.3
FORM OF EXCHANGE AGENCY AGREEMENT
______________, 1997
Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street
New York, NY 10006
Attention:
Ladies and Gentlemen:
Republic New York Corporation, a Maryland corporation, as
Depositor (the "Corporation"), and Republic New York Capital I, a Delaware
business trust (the "Trust"), hereby appoint Bankers Trust Company
("Bankers Trust") to act as exchange agent (the "Exchange Agent") in
connection with an exchange offer by the Corporation and the Trust to
exchange up to $150,000,000 aggregate Liquidation Amount of the Trust's 7
3/4% Capital Trust Pass-through Securities sm (TruPS sm) (the "Exchange
Capital Securities"), which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), for a like aggregate
Liquidation Amount of the Trust's 7 3/4% Capital Trust Pass-through
Securities sm (TruPS sm) (the "Old Capital Securities" and together with
the Exchange Capital Securities, the "Capital Securities"). The terms and
conditions of the exchange offer are set forth in a Prospectus dated
_________________, 1997 (as the same may be amended or supplemented from
time to time, the "Prospectus") and in the related Letter of Transmittal,
which together constitute the "Exchange Offer." The registered holders of
the Old Capital Securities or the Exchange Capital Securities, as
applicable, are hereinafter referred to as "Holders." Capitalized terms
used herein and not defined shall have the respective meanings described
thereto in the Prospectus.
On the basis of the representations, warranties and agreements of
the Corporation, the Trust and Bankers Trust contained herein and subject
to the terms and conditions hereof, the following sets forth the agreement
among the Corporation, the Trust and Bankers Trust as Exchange Agent with
respect to the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. The Corporation and the Trust hereby appoint Bankers Trust to
act as Exchange Agent in connection with the Exchange Offer and Bankers
Trust agrees to act as Exchange Agent in connection with the Exchange
Offer. As Exchange Agent, Bankers Trust will perform those services as are
outlined herein, including, but not limited to, accepting tenders of Old
Capital Securities and communicating generally regarding the Exchange Offer
with brokers, dealers, commercial banks, trust companies and other persons,
including Holders of the Old Capital Securities.
b. The Corporation and the Trust acknowledge and agree that
Bankers Trust has been retained pursuant to this Agreement to act solely as
Exchange Agent in connection with the Exchange Offer, and in such capacity,
Bankers Trust shall perform such duties in good faith as are outlined
herein. <PAGE>
c. Bankers Trust will examine each of the Letters of Transmittal
and certificates for Old Capital Securities and any other documents
delivered or mailed to Bankers Trust by or for Holders of the Old Capital
Securities, and any Book-Entry Confirmations (as defined in the Prospectus)
received by Bankers Trust with respect to the Old Capital Securities, to
ascertain whether: (i) the Letters of Transmittal and such other documents
are duly executed and properly completed in accordance with the
instructions set forth therein and that such Book-Entry Confirmations are
in due and proper form and contain the information required to be set forth
therein, (ii) the Old Capital Securities have otherwise been properly
tendered, (iii) Old Capital Securities tendered in part are tendered in
Liquidation Amounts of $100,000 (100 Capital Securities) and integral
multiples of $1,000 in excess thereof and that if any Old Capital
Securities are tendered for exchange in part, the untendered Liquidation
Amount thereof is $100,000 (100 Capital Securities) or any integral
multiple of $1,000 in excess thereof,. and (iv) Holders have provided their
correct Tax Identification Number and required certification. Determination
of all questions as to validity, form, eligibility and acceptance for
exchange of any Old Capital Securities shall be made by the Corporation or
the Trust, whose determination shall be final and binding. In each case
where the Letter of Transmittal or any other document has been improperly
completed or executed or where a Book-Entry Confirmation is not in due and
proper form or omits certain information, or any certificate for Old
Capital Securities is not in proper form for transfer or some other
irregularity or deficiency in connection with the tender or acceptance of
the Old Capital Securities exists, Bankers Trust will endeavor upon request
of the Corporation or the Trust to advise the tendering Holder of Old
Capital Securities of the irregularity or the deficiency in the tender and
to take any other action as the Corporation or the Trust may request to
cause such irregularity or deficiency to be corrected. Notwithstanding the
above, Bankers Trust shall not be under any duty to give any notification
of any irregularities or deficiency in tenders or incur any liability for
failure to give any such notification.
d. With the approval of the President, any Executive Vice
President, any Senior Vice President, any Vice President or the Treasurer
or any Assistant Treasurer of the Corporation (such approval, if given
orally, to be confirmed in writing), Bankers Trust is authorized to waive
any irregularities or other deficiency in connection with any tender of Old
Capital Securities pursuant to the Exchange Offer.
e. Tenders of Old Capital Securities may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned
"The Exchange Offer" and Old Capital Securities shall be considered
properly tendered only when tendered in accordance with the procedures set
forth therein.
f. Bankers Trust shall advise the Corporation and the Trust of the
aggregate Liquidation Amount of Old Capital Securities received by it as
soon as possible after 5:00 p.m., New York City time, on the Expiration
Date and accept the Corporation's or the Trust's instructions with respect
to the disposition of such Old Capital Securities.
g. Bankers Trust shall deliver certificates for Old Capital
Securities tendered in part to the transfer agent for split-up and shall
return any untendered Old Capital Securities and all Old Capital Securities
which have not been accepted by the Corporation and the Trust to the
Holders thereof promptly after the expiration or termination of the
Exchange Offer.
h. Upon acceptance by the Corporation and the Trust of any Old
Capital Securities duly tendered pursuant to the Exchange Offer (such
acceptance, if given orally, to be confirmed in writing), the Corporation
and the Trust will cause Exchange Capital Securities in exchange therefor
to be issued as promptly as possible and Bankers Trust will deliver such
Exchange Capital Securities on behalf of the Corporation and the Trust at
the rate of $100,000 (100 Capital Securities) Liquidation Amount of
Exchange Capital Securities for each $100,000 Liquidation Amount of Old
Capital Securities tendered as promptly as possible after acceptance by the
Corporation and the Trust of the Old Capital Securities for exchange and
notice (such notice, if given orally, to be confirmed in <PAGE>
writing) of such acceptance by the Corporation and the Trust. Unless
otherwise instructed by the Corporation or the Trust, Bankers Trust shall
issue Exchange Capital Securities only in denominations of $100,000 (100
Capital Securities) Liquidation Amount or any integral multiple of $1,000
in excess thereof.
i. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Capital Securities tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to 5:00 p.m., New
York City time, on the Expiration Date in accordance with the terms of the
Exchange Offer.
j. Notice of any decision by the Corporation and the Trust not to
exchange any Old Capital Securities tendered shall be given by the
Corporation or the Trust to Bankers Trust either orally (if given orally,
to be confirmed in writing) or in a written notice.
k. If the Corporation and the Trust do not accept for exchange all
or part of the Old Capital Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus
under the caption "The Exchange Offer-- Conditions to the Exchange Offer"
or otherwise, Bankers Trust shall, upon notice from the Corporation and the
Trust (such notice, if given orally, to be confirmed in writing), promptly
after the expiration or termination of the Exchange Offer return the
certificates for unaccepted Old Capital Securities (or effect appropriate
book- entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in Bankers Trust's
possession, to the persons who deposited such certificates.
l. Certificates, if issued in definitive form, for reissued Old
Capital Securities, unaccepted Old Capital Securities or Exchange Capital
Securities shall be forwarded (a) by first-class certified mail, return
receipt requested, under a blanket surety bond obtained by Bankers Trust
protecting Bankers Trust, the Corporation and the Trust from loss or
liability arising out of the non-receipt or non-delivery of such
certificates or (b) by registered mail insured by Bankers Trust separately
for the replacement value of each such certificate.
m. Bankers Trust is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer,
commercial bank, trust company or other nominee or to engage or use any
person to solicit tenders.
n. As Exchange Agent, Bankers Trust:
(i) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in
writing;
(ii) will make no representations and will have no
responsibilities as to the validity, value or genuineness of any
of the certificates for the Old Capital Securities deposited
pursuant to the Exchange Offer, and will not be required to and
will make no representation as to the validity, value or
genuineness of the Exchange Offer;
(iii) shall not be obligated to take any legal action
hereunder which might in Bankers Trust's reasonable judgment
involve any expense or liability, unless Bankers Trust shall have
been furnished with indemnity satisfactory to it for the taking of
such action;
(iv) may conclusively rely on and shall be protected in
acting in reliance upon any certificate, instrument, opinion,
notice, letter, telegram or other document or security delivered
to Bankers Trust and reasonably believed by Bankers Trust to be
genuine and to have been signed by the proper party or parties;
<PAGE>
(v) may conclusively act upon any tender, statement,
request, comment, agreement or other instrument whatsoever (not
only as to the due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein) which Bankers Trust believes in
good faith to be genuine and to have been signed or made by a
proper person or persons;
(vi) may conclusively rely on and shall be fully
protected in acting upon written or oral instructions from the
President, any Executive Vice President, any Senior Vice
President, any Vice President, the Treasurer or any Assistant
Treasurer of the Corporation(such instruction, if given orally, to
be confirmed in writing);
(vii) may consult with its own counsel with respect to
any questions relating to Bankers Trust's duties and
responsibilities and the advice of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by Bankers Trust hereunder
in good faith and in accordance with the advice of such counsel;
(viii) shall not advise any person tendering Old Capital
Securities pursuant to the Exchange Offer as to whether to tender
or refrain from tendering all or any portion of its Old Capital
Securities or as to the market value, decline or appreciation in
market value of any Old Capital Securities that may or may not
occur as a result of the Exchange Offer or as to the market value
of the Exchange Capital Securities; and
(ix) shall take such action as may from time to time be
requested by the Corporation or the Trust to furnish copies of the
Prospectus, the Letter of Transmittal, the Notice of Guaranteed
Delivery or such other forms as may be approved from time to time
by the Corporation and the Trust to all persons requesting such
documents and to accept and comply with telephone requests for
information relating to the Exchange Offer. The Corporation and
the Trust will furnish Bankers Trust with copies of such documents
at its request. Notwithstanding the foregoing, it is understood
that the Corporation and the Trust will be primarily responsible
for supplying copies of the Prospectus, the Letter of Transmittal
and the Notice of Guaranteed Delivery and responding to requests
for confirmation.
o. Bankers Trust shall advise orally and promptly thereafter
confirm in writing to the Corporation and the Trust and such other person
or persons as the Corporation and the Trust may request, daily (and more
frequently during the week immediately preceding the Expiration Date and if
otherwise reasonably requested) up to and including the Expiration Date,
the aggregate Liquidation Amount of Old Capital Securities which have been
tendered pursuant to the terms of the Exchange Offer and the items received
by Bankers Trust pursuant to the Exchange Offer and this Agreement. In
addition, Bankers Trust will also provide, and cooperate in making
available to the Corporation and the Trust or any such other person or
persons as the Corporation and the Trust may request from time to time,
such other information in its possession as the Corporation, the Trust or
any such other person or persons as the Corporation and the Trust may
designate may reasonably request (such request if made orally, to be
confirmed in writing). Such cooperation shall include, without limitation,
the granting by Bankers Trust to the Corporation and the Trust, and such
person or persons as the Corporation and the Trust may request, access to
those persons on Bankers Trust's staff who are responsible for receiving
tenders, in order to ensure that immediately prior to the Expiration Date
the Corporation and the Trust shall have received adequate information in
sufficient detail to enable the Corporation and the Trust to decide whether
to extend the Exchange Offer. Bankers Trust shall prepare a final list of
all persons whose tenders were accepted, the aggregate Liquidation Amount
of Old Capital Securities tendered and the aggregate Liquidation Amount of
Old Capital Securities accepted and deliver said list to the Corporation
and the Trust.
<PAGE>
p. Letters of Transmittal, Book-Entry Confirmations and Notices of
Guaranteed Delivery shall be stamped by Bankers Trust as to the date and
the time of receipt thereof and shall be preserved by Bankers Trust for a
period of time at least equal to the period of time Bankers Trust preserves
other records pertaining to the transfer of securities, or one year,
whichever is longer, and thereafter shall be delivered by Bankers Trust to
the Corporation and the Trust. Bankers Trust shall dispose of unused
Letters of Transmittal and other surplus materials by returning them to the
Corporation or the Trust.
q. Bankers Trust hereby expressly waives any lien, encumbrance or
right of set-off whatsoever that Bankers Trust may have with respect to
funds deposited with it for the payment of transfer taxes by reasons of
amounts, if any, borrowed by the Corporation or the Trust, or any of its or
their subsidiaries or affiliates, pursuant to any loan or credit agreement
with Bankers Trust or for compensation owed to Bankers Trust hereunder or
for any other matter.
2. COMPENSATION.
$3,500 will be payable to Bankers Trust in its capacity as
Exchange Agent; provided, that Bankers Trust reserves the right to receive
reimbursement from the Corporation for any reasonable out-of-pocket
expenses incurred as Exchange Agent in performing the services described
herein. The obligations of the Corporation hereunder shall survive the
termination of this Agreement.
3. INDEMNIFICATION.
a. The Corporation and the Trust hereby agree to protect, defend,
indemnify and hold harmless Bankers Trust and its officers, directors,
employees and agents from and against any and all costs, losses,
liabilities, expenses (including reasonable counsel fees and disbursements)
and claims imposed upon or asserted against Bankers Trust on account of any
action taken or omitted to be taken by Bankers Trust in connection with its
acceptance of or performance of its duties under this Agreement and to
reimburse Bankers Trust upon demand for the reasonable costs and expenses
of defending itself against any claim or liability arising out of or
relating to this Agreement. This indemnification shall survive the release,
discharge, termination and/or satisfaction of this Agreement. Anything in
this Agreement to the contrary notwithstanding, neither the Corporation nor
the Trust shall be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of Bankers Trust's bad
faith, gross negligence or willful misconduct. In no case shall the
Corporation or the Trust be liable under this indemnification agreement
with respect to any claim against Bankers Trust until the Corporation and
the Trust shall be notified by Bankers Trust, by letter, of the written
assertion of a claim against Bankers Trust or of any other action commenced
against Bankers Trust. Such notice shall be delivered promptly after
Bankers Trust shall have received any such written assertion or shall have
been served with a summons in connection therewith, provided, that, Bankers
Trust's failure to give such notice shall not excuse the Corporation or the
Trust from its obligations hereunder (except to the extent the Corporation
or the Trust is prejudiced by such delay). The Corporation and the Trust
shall be entitled to participate at their own expense in the defense of any
such claim or other action, and, if the Corporation and the Trust so elect,
the Corporation and the Trust may assume the defense of any pending or
threatened action against Bankers Trust in respect of which indemnification
may be sought hereunder with counsel reasonably acceptable to Bankers
Trust, in which case the Corporation and the Trust shall not thereafter be
responsible for the fees and disbursements of legal counsel for Bankers
Trust under this paragraph; provided that the Corporation and the Trust
shall not be entitled to assume the defense of any such action if the named
parties to such action include the Corporation or the Trust and Bankers
Trust and representation of the parties by the same legal counsel would, in
the written opinion of counsel for Bankers Trust, be inappropriate due to
actual or potential conflicting interests between them. It is understood
that the Corporation and the Trust shall not be liable under this paragraph
for the fees and disbursements of more than one legal counsel for Bankers
Trust. In the event that the Corporation and the Trust shall assume the
<PAGE>
defense of any such suit with counsel reasonably acceptable to Bankers
Trust, neither the Corporation nor the Trust shall thereafter be liable for
the fees and expenses of any counsel retained by Bankers Trust.
b. Bankers Trust agrees that, without the prior written consent of
the Corporation and the Trust (which consent shall not be unreasonably
withheld), it will not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in
respect of which indemnification could be sought in accordance with the
indemnification provisions of this Agreement (whether or not Bankers Trust,
the Corporation, the Trust or any of their respective directors, officers
and controlling persons is an actual or potential party to such claim,
action or proceeding).
c. The Corporation agrees to indemnify and hold harmless the Trust
from and against any and all losses, claims, damages and liabilities
whatsoever, which are due from the Trust under this Section.
4. TAX INFORMATION.
The Corporation and the Trust shall arrange to comply with all
requirements under the tax laws of the United States, including those
relating to missing Tax Identification Numbers, and shall file any
appropriate reports with the Internal Revenue Service. The Corporation and
the Trust understand that they are required, in certain instances, to
deduct 31% with respect to interest paid on the Exchange Capital Securities
and proceeds from the sale, exchange, redemption or retirement of the
Exchange Capital Securities from Holders of Exchange Capital Securities who
have not supplied their Taxpayer Identification Number or required
certification. Such funds will be turned over to the Internal Revenue
Service. Bankers Trust shall notify the Corporation and the Trust of any
Holder of Exchange Capital Securities who has failed to supply such
Taxpayer Identification Number or certification.
5. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that State.
6. NOTICES. Except as otherwise provided herein, any communication or
notice provided for hereunder shall be in writing and shall be given (and
shall be deemed to have been given upon receipt) by delivery in person,
facsimile or overnight delivery or by registered or certified mail (postage
prepaid, return receipt requested) to the applicable party at the addresses
indicated below:
If to the Corporation:
Republic New York Corporation
Office of the Corporate Secretary
452 Fifth Avenue
New York, NY 10018
Fax No.: (212) 525-6509
If to the Trust:
c/o Republic New York Corporation
Office of the Corporate Secretary
452 Fifth Avenue
New York, NY 10018
Fax No.: (212) 525-6509
<PAGE>
If to Bankers Trust Company:
Bankers Trust Company
Corporate Trust and Agency Group/ Capital Market Services
Four Albany Street, 4th Floor
New York, NY 10006
Attn: Jason W. Krasilovsky
Fax No.: (212) 250-6961
or, as to each party, at such other address as shall be designated by such
party in a written notice complying as to delivery with the terms of this
Section.
7. PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person
any right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no Holder of Old Capital Securities or Exchange
Capital Securities shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
8. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in one or
more counterparts, and by different parties hereto on separate
counterparts, each of which when so executed shall be deemed an original,
and all of such counterparts shall together constitute one and the same
agreement. If any term or other provision of this Agreement or the
application thereof is invalid, illegal or incapable of being enforced by
any rule of law, or public policy, all other provisions of this Agreement
shall nevertheless remain in full force and effect.
9. CAPTIONS. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended or modified nor may any
provision hereof be waived except in writing signed by each party to be bound
thereby.
11. TERMINATION. This Agreement shall terminate upon the earliest of (a)
the 90th day following the expiration, withdrawal or termination of the
Exchange Offer, (b) the close of business on the date of actual receipt of
written notice by Bankers Trust from the Corporation and the Trust stating
that this Agreement is terminated, (c) one year following the date of this
Agreement, and (d) the time and date on which this Agreement shall be
terminated by mutual consent of the parties hereto.
12. MISCELLANEOUS.
Bankers Trust hereby acknowledges receipt of the Prospectus and the
forms of the Letter of Transmittal and the Notice of Guaranteed Delivery
and further acknowledges that it has examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus
and the forms of the Letter of Transmittal and the Notice of Guaranteed
Delivery (as they may be amended or supplemented from time to time), on the
other hand, shall be resolved in favor of the latter three documents,
except with respect to the duties, liabilities, rights, powers and
indemnification of Bankers Trust as Exchange Agent, which shall be
controlled by this Agreement.
Kindly indicate your willingness to act as Exchange Agent and your
acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to the Corporation a <PAGE>
copy of this Agreement so signed, whereupon this Agreement and Bankers
Trust's acceptance shall constitute a binding agreement among Bankers
Trust, the Corporation and the Trust.
Very truly yours,
REPUBLIC NEW YORK CORPORATION
By: __________________________________
Name:
Title:
REPUBLIC NEW YORK CAPITAL I
By: __________________________________
Name:
Title: Administrative Trustee
Accepted and agreed to as of the date first written above:
BANKERS TRUST COMPANY, as Exchange Agent
By: _____________________________________
Name:
Title:
