AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 31, 1997
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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REPUBLIC NEW YORK CORPORATION REPUBLIC NEW YORK CAPITAL II
(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 Applied for
(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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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, please check the following box. [_]
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT(1)<F1> PRICE(1)<F1> FEE
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<S> <C> <C> <C> <C>
7.53% Capital Securities
of Republic New York
Capital II......... $200,000,000 100% $200,000,000 $60,606
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7.53% Junior Subordinated
Debt Securities of Republic
New York Corporation (2)<F2>.. -- -- -- NA
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Republic New York
Corporation Guarantee
with respect to Capital
Securities and Common
Securities(3)<F3>...... -- -- -- NA
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Total(4)<F4>........... $200,000,000(5)<F5> 100% $200,000,000(5)<F5> $60,606
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<FN>
<F1>(1) Estimated solely for the purpose of computing the registration fee.
<F2>(2) The Junior Subordinated Debt Securities were originally purchased
by Republic New York Capital II with the proceeds of the sale of the
Capital Securities (the "Old Capital Securities"). No separate
consideration will be received for the Junior Subordinated Debt Securities
distributed upon any liquidation of Republic New York Capital II.
<F3>(3) No separate consideration will be received for the Republic New
York Corporation Guarantee.
<F4>(4) This Registration Statement is deemed to cover the Junior
Subordinated Debt Securities of Republic New York Corporation, the rights
of holders of Junior Subordinated Debt Securities of Republic New York
Corporation under the Junior Subordinated Indenture, the rights of holders
of Old Capital Securities of Republic New York Capital II under a
Declaration of Trust, the rights of holders of the Old Capital Securities
under the Guarantee and certain backup undertakings as described herein.
<F5>(5) Such amount represents the initial offering price of the Old Capital
Securities to be exchanged hereunder and the principal amount of Junior
Subordinated Debt Securities that may be distributed upon any liquidation
of Republic New York Capital II.
</TABLE>
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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.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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 JANUARY 31, 1997
PROSPECTUS REPUBLIC NEW YORK CAPITAL II
OFFER TO EXCHANGE ITS 7.53% CAPITAL SECURITIES
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING 7.53% CAPITAL SECURITIES
(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 II, 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
$200,000,000 aggregate Liquidation Amount of its 7.53% Capital Securities
(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 7.53%
Capital Securities (the "Old Capital Securities"), of which $200,000,000
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 7.53% Junior Subordinated Debt
Securities (the "Old Junior Subordinated Debt Securities"), of which
$206,186,000 aggregate principal amount is outstanding, for a like
aggregate principal amount of its 7.53% 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
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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 24 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.
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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 December 4, 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 December 4,
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-
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annually in arrears on June 4 and December 4 of each year, commencing June
4, 1997, at the annual rate of 7.53% of the Liquidation Amount of $1,000
per Capital Security and at the annual rate of 7.53% 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 7.53%, 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 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 7.53% 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
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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 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
December 4, 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 are redeemable at the option of the Corporation at any time on
or after December 4, 2006, in whole or in part, at a redemption price (the
"Optional Prepayment Price") equal to 103.765% of the principal amount
thereof on December 4, 2006, declining ratably on each December 4
thereafter to 100% on or after December 4, 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
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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 holder 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 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, 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 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
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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
currently intend to apply for listing of the Exchange Capital Securities as
debt securities on the New York Stock Exchange.
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 on or 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 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-
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- -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 December
4, 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."
----------------
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..................................................... 13
Incorporation of Certain Documents by Reference........................... 13
Summary................................................................... 15
Risk Factors.............................................................. 24
Ratios of Earnings to Fixed Charges....................................... 31
Use of Proceeds from Sale of Old Capital Securities....................... 32
Capitalization............................................................ 32
Dividend History.......................................................... 33
Republic New York Capital II............................................. 33
Republic New York Corporation............................................. 35
The Exchange Offer........................................................ 36
Description of the Exchange Securities.................................... 48
Description of the Old Securities......................................... 81
Relationship Among the Capital Securities, the Junior Subordinated
Debt Securities and the Guarantee........................................ 81
Certain Federal Income Tax Consequences................................... 83
Plan of Distribution...................................................... 90
Validity of the Exchange Securities....................................... 90
Experts................................................................... 91
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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 II" 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 Report on Form 10-K for the year ended
December 31, 1995;
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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, shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
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 ______________________, 1997.
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<PAGE>
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 II
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 26, 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
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<PAGE>
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
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 $200,000,000 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
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<PAGE>
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 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 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
17
<PAGE>
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 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
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<PAGE>
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
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<PAGE>
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 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
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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 $200,000,000 aggregate Liquidation Amount of the
Trust's 7.53% Capital Securities 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 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..June 4 and December 4 of each year, commencing
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<PAGE>
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 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
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<PAGE>
redemption (i) in whole (but not in part) upon the
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 December 4, 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+" rating issued by Standard & Poor's Ratings
Services and the "a1" rating issued by Moody 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 Deutsche Morgan Grenfell 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 currently intend to apply for
listing of the Exchange Capital Securities as debt
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 under the Guarantee and
pursuant to 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 December 31, 1996, the aggregate outstanding Senior
Debt of the Corporation was approximately $1.0 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 and
beneficiaries of the Guarantee 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 7.53% 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,
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<PAGE>
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 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 7.53%, 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 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."
25
<PAGE>
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 the 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 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,
26
<PAGE>
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. Although the 104th Congress adjourned without enacting the
Bill, there can be no assurance that current 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 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
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<PAGE>
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
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<PAGE>
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. 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 Capital
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 Trust 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).
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<PAGE>
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 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
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<PAGE>
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.
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
<TABLE>
<CAPTION>
Years Ended December 31,
-----------------------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
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
</TABLE>
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.
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<PAGE>
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 $200,000,000 (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.
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."
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<PAGE>
<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 350 350
of subsidiary trusts(1)
Stockholders' equity:
Preferred stock(2) .......................................... 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
======= =======
</TABLE>
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.
The Corporation intends to redeem preferred stock outstanding in an
aggregate amount of $155.8 million during the first quarter of 1997.
DIVIDEND HISTORY
The Corporation has paid a regular quarterly dividend on its
Common Stock since such payment began in 1975.
REPUBLIC NEW YORK CAPITAL II
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 December 4, 1996 (the "Declaration"), and (ii) the filing of a
certificate of trust with the Delaware Secretary of State on November 26,
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 incidental thereto.
Holders of the Trust Securities have no
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<PAGE>
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
34
<PAGE>
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 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
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
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<PAGE>
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
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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 $206,186,000 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 $200,000,000
aggregate Liquidation Amount of Exchange Capital Securities for a like
aggregate Liquidation Amount of Old Capital Securities properly tendered on
or prior to 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 $200,000,000
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, $200,000,000 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.
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".
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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
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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 addresses 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, 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 on or prior to the Expiration Date or (iii) the holder must comply
with the guaranteed delivery procedures set forth below must be complied
with.
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 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
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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, executor, administrator, guardian, 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 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
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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.
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.
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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 one of its addresses set forth under "-- Exchange
Agent" on or prior to 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 on or before 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 on or prior to 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 addresses 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 on or prior to
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 the distribution thereof to the holders of the 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
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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 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.
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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 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
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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
(g) 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
(h) 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.
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
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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 or facsimile number in
the manner prescribed for each such address 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
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submitted with the Letter of Transmittal, the amount of such transfer taxes
will be billed directly to such tendering holder.
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 $200,000,000 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 7.53% of the stated Liquidation Amount of $1,000, and
will be payable semi-annually in arrears on June 4 and December 4 of each
year to the holders of the Capital Securities at the close of business on
the May 20 and November 20 (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 June 4,
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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 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 7.53% 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
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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."
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."
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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 December 4,
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 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 certificated form, the Property Trustee, to
the extent funds are
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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
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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 the Trust Securities as the 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."
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,
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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 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
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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
(iii) default by the Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
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(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,
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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.
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,
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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 assign 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 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
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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.
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
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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
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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 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
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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 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.
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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).
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.
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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 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 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
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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 7.53% of the principal amount thereof, payable semi-annually
in arrears on June 4 and December 4 of each year (each, an "Interest
Payment Date"), commencing June 4, 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
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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
the 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 Subordinated Debt Securities without
further compliance with the registration and prospectus delivery
requirements of the Securities Act. See "The Exchange Offer--Resales 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 7.53% 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 December 4,
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
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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 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
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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 May
20 or November 20, as the case may be, next preceding the relevant Interest
Payment Date.
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,
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.
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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 7.53%, 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
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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 7.53%, 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. 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 on or after
December 4, 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 December 4:
Redemption
Year Price
2006 103.765%
2007 103.389
2008 103.01
2009 102.6355
2010 102.259
2011 101.8825
2012 101.506
2013 101.1295
2014 100.753
2015 100.3765
and at 100% on or after December 4, 2016.
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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 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
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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) 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.
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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
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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. 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
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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 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
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(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.
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
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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 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
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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.
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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.
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.
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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.
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.
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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 due on the Capital
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 Trust
Securities; (iii) the
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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
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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.
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
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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 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 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
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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
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."
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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. Although the 104th Congress adjourned without enacting the
Bill, there can be no assurance that current 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
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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 a paying agent with a copy thereof.
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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 NonUnited 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
88
<PAGE>
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 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.
89
<PAGE>
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 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.
90
<PAGE>
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."
91
<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.
92
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT
- --------
4.1 Junior Subordinated Indenture between the Corporation and Bankers
Trust Company, as Debenture Trustee, dated December 4, 1996.
4.2 Certificate of Trust of Republic New York Capital II.
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 26, 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 December 4, 1996.
4.5 Form of Capital Security Certificate originally issued by Republic New
York Capital I on December 4, 1996 (included as Exhibit B of Exhibit
4.4).
4.6 Form of Capital Security Certificate to be issued by Republic New York
Capital II and registered under the Securities Act of 1933, as
amended.
4.7 Form of Security for 7.53% Junior Subordinated Debt Security due
December 4, 2026 originally issued by the Corporation on December 4,
1996 (included in Article 2 of Exhibit 4.1).
4.8 Form of Security for 7.53% Junior Subordinated Debt Security due
December 4, 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 December 4, 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 December 4, 1996 between the
Corporation, Republic New York Capital I and Deutsche Morgan Grenfell
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 II.*
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 II.
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.
93
<PAGE>
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.*
---------
* To be filed by amendment.
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 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.
94
<PAGE>
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 JANUARY 31, 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 JANUARY 31, 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
- ---------------------
(Cyril S. Dwek)
ERNEST GINSBERG Director
- ---------------------
(Ernest Ginsberg)
NATHAN HASSON Director
- ---------------------
(Nathan Hasson)
Director
- ---------------------
(Jeffrey C. Keil)
PETER KIMMELMAN Director
- ---------------------
(Peter Kimmelman)
95
<PAGE>
SIGNATURE TITLE
- --------- -----
RICHARD A. KRAEMER Director
- ---------------------
(Richard A. Kraemer)
LEONARD LIEBERMAN Director
- ---------------------
(Leonard Lieberman)
WILLIAM C. MACMILLEN, JR . Director
- ---------------------
(William C. MacMillen, Jr.)
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)
96
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, REPUBLIC NEW
YORK CAPITAL II 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 JANUARY 31, 1997.
REPUBLIC NEW YORK CAPITAL II
By: THOMAS F. ROBARDS
---------------------------------
(Thomas F. Robards)
Administrative Trustee
By: STEPHEN J. SAALI
---------------------------------
(Stephen J. Saali)
Administrative Trustee
97
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
--------- -----------
4.1 Junior Subordinated Indenture between the Corporation and Bankers
Trust Company, as Debenture Trustee, dated December 4, 1996.
4.2 Certificate of Trust of Republic New York Capital II.
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 26, 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 December 4, 1996.
4.5 Form of Capital Security Certificate originally issued by Republic New
York Capital I on December 4, 1996 (included as Exhibit B of Exhibit
4.4).
4.6 Form of Capital Security Certificate to be issued by Republic New York
Capital II and registered under the Securities Act of 1933, as
amended.
4.7 Form of Security for 7.53% Junior Subordinated Debt Security due
December 4, 2026 originally issued by the Corporation on December 4,
1996 (included in Article 2 of Exhibit 4.1).
4.8 Form of Security for 7.53% Junior Subordinated Debt Security due
December 4, 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 December 4, 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 December 4, 1996 between the
Corporation, Republic New York Capital I and Deutsche Morgan Grenfell
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 II.*
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 II.
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.
98
<PAGE>
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.*
- ---------------
*To be filed by amendment.
99
REPUBLIC NEW YORK CORPORATION
to
BANKERS TRUST COMPANY
Trustee
JUNIOR SUBORDINATED INDENTURE
Dated as of November 27, 1996
<PAGE>
REPUBLIC NEW YORK CORPORATION
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including
317 which, pursuant to Section 318(c) of the Trust Indenture Act of 1939,
as amended by the Trust Reform Act of 1990, are a part of and govern the
Indenture whether or not physically contained therein) and the Junior
Subordinated Indenture, dated as of November 27, 1996.
Trust Indenture Indenture
Act Section Section
Sec. 310(a)(1), (2) and (5). . . . . . . . . . . . . 6.9
(a)(3). . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . 6.8, 6.10
(c). . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a). . . . . . . . . . . . . . . . . . . . 6.13(a)
(b). . . . . . . . . .. . . . . . . . . . . 6.13(b)
(b)(2). . . . . . . . . . . . . . . . . . . 7.3(a)(2)
312(a). . . . . . . . . . . . . . . . . . . . 7.1, 7.2(a)
(b). . . . . . . . . . . . . . . . . . . . 7.2(b)
(c).. . . . . . . . . . . . . . . . . . . . 7.2(c)
313(a). . . . . . . . . . . . . . . . . . . . 7.3(a)
(b). . . . . . . . . . . . . . . . . . . . 7.3(b)
(c). . . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(d). . . . . . . . . . . . . . . . . . . . 7.3(c)
314(a)(1), (2) and (3). . . . . . . . . . . . 7.4
(a)(4). . . . . . . . . . . . . . . . . . . 10.5
(b). . .. . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . 1.2
(f). . . . . . . . . . . . . . . . . . . . . Not Applicable
315(a). . . . . . . . . . . . . . . . . . . . 6.1(a)
(b). . . . . . . . . . . . . . . . . . . . 6.2, 7.3(a)
(c). . . . . . . . . . . . . . . . . . . . . 6.1(b)
(d). . . . . . . . . . . . . . . . . . . . . 6.1(c)
(d)(1). . . . . . . . . . . . . . . . . . . 6.1(a)(1)
(d)(2). . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . 5.14
316(a). . . . . . . . . . . . . . . . . . . . 1.1
(a)(1)(A). . . . . . . . . . . . . . . . . 5.12
(a)(1)(B). . . . . . . . . . . . . . . . . 5.13
(a)(2). . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . 5.8
(c). . . . . . . . . . . . . . . . . . . . 1.4(f)
317(a)(1). . . . . . . . . . . . . . . . . . . 5.3
(a)(2). . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . 10.3
318(a). . . . . . . . . . . . . . . . . . . . . 1.7
- --------
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Junior Subordinated Indenture.
i
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C>
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION 1
SECTION 1.1. Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Compliance Certificate and Opinions . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.3. Forms of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.4. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.5. Notices, Etc. to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.6. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.7. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.8. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . 11
SECTION 1.9. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.10. Separability Clause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.11 Benefits of Indenture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.12. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.13. Non-Business Days. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE II. SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 12
SECTION 2.1. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 12
SECTION 2.2. Form of Face of Security. . . . . . . . . . . . . . . . . . . . .. . . . . . . 12
SECTION 2.3. Form of Reverse of Security.. . . . . . .. . . . . . . . . . . . . .. . . . . . . 16
SECTION 2.4. Additional Provisions Required in Global Security. . . . . . . . . . . . . . . . 19
SECTION 2.5. Form of Trustee's Certificate of Authentication.. . . . . . . . . . . . . . . . 19
ARTICLE III. THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.1. Title and Terms.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.2. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.3. Execution, Authentication, Delivery and Dating. . . . . . . . . . . . . . . . . 21
SECTION 3.4. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.5. Global Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.6. Registration, Transfer and Exchange Generally; Certain Transfers
and Exchanges; Restricted Securities Legends . . . . . . . . . . 24
SECTION 3.7. Mutilated, Destroyed Lost and Stolen Securities. . . . . . . . . . 27
SECTION 3.8. Payment of Interest; Interest Rights Preserved. . . . . . . . . . 28
SECTION 3.9. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.10. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.11. Computation of Interest. . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.12. Deferrals of Interest Payment Dates. . . . . . . . . . . . . . . . . . . 29
SECTION 3.13. Right of Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.14. Agreed Tax Treatment. . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.15. Extension of Stated Maturity; Adjustment of Stated Maturity
Upon an Exchange. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.16. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE IV. SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.1. Satisfaction and Discharge of Indenture. . . . . . . . . . . . . . . . . 31
SECTION 4.2. Application of Trust Money. . . . . . . . . . . . . . . . . . . . . 32
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ARTICLE V. REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.1. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment. . . . . . . . . . 34
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee. . . . . . 35
SECTION 5.4. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . 36
SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities. . . . . . . . . 36
SECTION 5.6. Application of Money Collected. . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.7. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.9. Restoration Of Rights and Remedies. . . . . . . . . . . . . . . . . . 38
SECTION 5.10. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.11. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.12. Control by Holders. . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.13. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.14. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. . . . . . . . . . . . . . . . . 40
ARTICLE VI. THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.1. Certain Duties and Responsibilities. . . . . . . . . . . . . . . . . . 40
SECTION 6.2. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.3. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities. . . . . . . . . . 42
SECTION 6.5. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.6. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.7. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.8. Disqualification; Conflicting Interests. . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.9. Corporate Trustee Required; Eligibility. . . . . . . . . . . . . . . . . 44
SECTION 6.10. Resignation and Removal; Appointment of Successor. . . . . . . . . . 44
SECTION 6.11. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . . 45
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business. . . . 46
SECTION 6.13. Preferential Collection of Claims Against Company. . . . . . . . . . 46
SECTION 6.14. Appointment of Authenticating Agent. . . . . . . . . . . . . . . . . . . . 47
SECTION 6.15. Trustee's Rights and Obligations After
Exchange and Registration. . . . . . . . . . . . . . . . . . . . 48
ARTICLE VII. HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . 48
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders. . . . 48
SECTION 7.2. Preservation of Information, Communications to Holders. . . . . . . . 48
SECTION 7.3. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.4. Reports by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 49
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms. . . . . . . . . 49
SECTION 8.2. Successor Corporation Substituted. . . . . . . . . . . . . . . . . . . . . . . 50
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ARTICLE IX. SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.1. Supplemental Indentures without Consent of Holders. . . . . . . . . . 51
SECTION 9.2. Supplemental Indentures with Consent of Holders. . . . . . . . . . 51
SECTION 9.3. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . 53
SECTION 9.4. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . 53
SECTION 9.5. Conformity with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . 53
SECTION 9.6. Reference in Securities to Supplemental Indentures. . . . . . . . . . 53
ARTICLE X. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.1. Payment of Principal, Premium and Interest. . . . . . . . . . . . . . . . . 53
SECTION 10.2. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.3. Money for Security Payments to be Held in Trust. . . . . . . . . . 54
SECTION 10.4. Statement as to Compliance. . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.5. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.6. Payment of the Trust's Costs and Expenses. . . . . . . . . . . . . . . . . 56
SECTION 10.7. Additional Covenants. . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.8. Information Returns. . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE XI. REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.1. Applicability of This Article. . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.2. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . . . . . 57
SECTION 11.3. Selection of Securities to be Redeemed. . . . . . . . . . . . . . . . . 57
SECTION 11.4. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.5. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . 59
SECTION 11.6. Payment of Securities Called for Redemption. . . . . . . . . . . . . . . . . 59
SECTION 11.7. Company's Right of Redemption. . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XII. EXCHANGE AND REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . 60
SECTION 12.1. Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 12.2. Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 12.3. Increase in Interest Rate. . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 12.4. Compliance With Law. . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XIII. SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.1. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 13.2. Satisfaction of Sinking Fund Payments with Securities. . . . . . . . . . 61
SECTION 13.3. Redemption of Securities for Sinking Fund. . . . . . . . . . . . . . . . . 61
ARTICLE XIV. SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 14.1. Securities Subordinate to Senior Debt. . . . . . . . . . . . . . . . . . . . 63
SECTION 14.2. Payment Over of Proceeds Upon Dissolution, Etc. . . . . . . . . . 63
SECTION 14.3. Prior Payment to Senior Debt Upon Dissolution, Etc. . . . . . . . . . 64
SECTION 14.4. No Payment When Senior Debt in Default. . . . . . . . . . . . . . . . . 65
SECTION 14.5. Payment Permitted If No Default. . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 14.6. Subrogation to Rights of Holders of Senior Debt. . . . . . . . . . 65
SECTION 14.7. Provisions Solely to Define Relative Rights. . . . . . . . . . . . . . . . . 66
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SECTION 14.8. Trustee to Effectuate Subordination. . . . . . . . . . . . . . . . . . . . . 66
SECTION 14.9. No Waiver of Subordination Provisions. . . . . . . . . . . . . . . . . . . . 66
SECTION 14.10. Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 14.11. Reliance on Judicial Order or Certificate of Liquidating Agent. . .. . . 67
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior Debt. . . . . . . . . . . . . 67
SECTION 14.13. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 14.14. Article Applicable to Paying Agents. . . . . . . . . . . . . . . . . . . . . 67
SECTION 14.15. Certain Conversions or Exchanges Deemed Payments . . . . . . 67
ANNEX A - FORM OF ORIGINAL DECLARATION OF TRUST . . . . . . . . . . . . . . . . A-1
ANNEX B - FORM OF AMENDED AND RESTATED DECLARATION OF TRUST . . . . . . . . .. . . B-1
ANNEX C - FORM OF GUARANTEE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . C-1
</TABLE>
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INDENTURE
JUNIOR SUBORDINATED INDENTURE, dated as of November 27, 1996, between
REPUBLIC NEW YORK CORPORATION, a bank holding company established under the
laws of Maryland (hereinafter called the "Company") having its principal
office at 452 Fifth Avenue, New York, New York 10018, and BANKERS TRUST
COMPANY, a New York banking corporation, as Trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in series (hereinafter called the
"Securities") of substantially the tenor hereinafter provided, including,
without limitation, Securities issued to evidence loans made to the company
of the Proceeds from the issuance from time to time by one or more business
trusts (each a "Republic New York Trust" and, collectively, the "Republic
New York Trusts") of preferred trust interests in such Trusts (the "Capital
Securities") and common interests in such Trusts (the "Common Securities"
and, collectively with the Capital Securities, the "Trust Securities"), and
to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms,
have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it
is mutually covenanted and agreed, for the equal and proportionate benefit
of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of
such computation; provided,
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<PAGE>
that when two or more principles are so generally accepted, it shall mean
that set of principles consistent with those in use by the Company; and
(4) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article VI, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified
in Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Securities of any series the payment of which has not
been made on the applicable Interest Payment Date and which shall accrue at
the rate per annum specified or determined as specified in any Officers'
Certificate delivered pursuant to Section 3.1 of the Indenture.
"Additional Sums" has the meani ng specified in Section 10.6.
"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 Company shall not be deemed to include any Republic New York Trust to
which Securities have been issued. 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.
"Agent Member" means any member of, or participant in, the Depositary.
"Amended and Restated Declaration of Trust" means the Amended and
Restated Declaration of Trust, dated November 27, 1996, entered into among
the Company, as Depositor, Bankers Trust (Delaware), as Delaware Trustee,
and Bankers Trust Company, as Property Trustee, and the Administrative
Trustees names therein.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, or such committee of the Board of
Directors or officers of the Company to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
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 (iii) a day on
which the Corporate Trust Office of the Trustee, or, with respect to the
Securities of a series issued to a Republic New York Trust, the principal
office of the Property Trustee under the related Trust Agreement, is closed
for business.
2
<PAGE>
"Capital Securities" has the meaning specified in the first recital of
this Indenture, and shall include, where appropriate, Exchange Capital
Securities as defined in Article XII.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or if at any time under the execution of this instrument
such Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties on
such date.
"Common Securities" has the meaning specified in the first recital of
this Indenture.
"Common Stock" means the common stock, $5 par value, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by the Chairman, Chief
Executive Officer, President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office as of the date of this Indenture is located at
Four Albany Street, New York, New York 10006, Attention: Corporate Trust
and Agency Group - Corporate Market Services.
"Corporation" includes a corporation, association, company,
joint-stock company or business trust.
"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 Company 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 original Declaration of Trust, dated
November 21, 1996, executed by the Company, as Depositor, Bankers Trust
(Delaware), as Delaware Trustee, and the administrative trustees named
therein.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.1 with respect to such series (or any successor thereto (a
"Successor Depositary")).
3
<PAGE>
"Discount Security" means any security which provides for an amount
less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2.
"Dollar" means the currency of the United States of America that, as
at the time of payment, is legal tender for the payment of public and
private debts.
"DTC" means The Depository Trust Company.
"Event of Default" unless otherwise specified in the supplemental
indenture creating a series of Securities has the meaning specified in
Article V.
"Extension Period" has the meaning specified in Section 3.12.
"Foreign Currency" means any currency issued by the government of one
or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Global Security" means a Security in the form prescribed in Section
2.4 evidencing all or part of a series of Securities, issued to the
Depositary or its nominee for such series. and registered in the name of
such Depositary or its nominee.
"Guarantee Agreement" means the Guarantee Agreement substantially in
the form attached hereto as Annex C, or substantially in such form as may
be specified as contemplated by Section 3.1 with respect to the Securities
of any series, in each case as amended from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and shall include the terms of each particular series of Securities
established as contemplated by Section 3.1.
"Interest Payment Date" means as to each series of Securities the
Stated Maturity of an installment of interest on such Securities.
"Interest Rate" means the rate of interest specified or determined as
specified in each Security as being the rate of interest payable on such
Security.
"Junior Subordinated Payment" has the meaning specified in Section
14.2.
"Lien" means any mortgage, pledge, lien, security interest or other
encumbrance.
"Liquidation Amount" has the meaning specified in Section 1.1 of the
Trust Agreement.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940, as amended.
4
<PAGE>
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President, or Vice President, and by the
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Issue Date" means the date of issuance specified as such in
each Security.
"Outstanding" means, when used in reference to any Securities, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.7, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
a Responsible Officer of the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor. Upon the written request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Company to be owned or
held by or for the account of the Company, or any other obligor on the
Securities or any Affiliate of the Company or such obligor, and, subject to
the provisions of Section 6.1, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for
the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of (or premium, if any) or interest on any
Securities on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any
series, the place or places where the principal of (and premium, if any)
and interest on the Securities of such series are payable pursuant to
Sections 3.1 and 3.11.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
security authenticated and delivered under Section 3.7 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as
the lost, destroyed or stolen Security.
"Proceeding" has the meaning specified in Section 14.2.
"Property Trustee" means, in respect of any Republic New York Trust,
the commercial bank or trust company identified as the "Property Trustee"
in the related Trust Agreement, solely in its capacity as Property Trustee
of such Republic New York Trust under such Trust Agreement and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as therein provided.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise
provided pursuant to Section 3.1 with respect to Securities of a series,
the date which is fifteen days next preceding such Interest Payment Date
(whether or not a Business Day).
"Republic New York Guarantee" means the guarantee of the Company of
the distributions on the Capital Securities of a Republic New York Trust to
the extent of the Guarantee Agreement, substantially in the form attached
hereto as Annex C, or substantially in such form as may be specified as
contemplated by Section 3.1 with respect to the Securities of any series,
in each case as amended from time to time.
"Republic New York Trust" has the meaning specified in the first
recital of this Indenture.
"Responsible Officer" when used with respect to the 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 Trustee customarily
performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration
of this Indenture, 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.
"Restricted Security" means each Security required pursuant to Section
3.6(c) hereof to bear a Restricted Securities Legend.
"Restricted Securities Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in Section
2.2 to be placed on a Restricted Security.
"Securities" or "Security" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.6.
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"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 Company
whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt of the Company, whether incurred on or prior to the
date of this 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 Securities or to other junior subordinated debt
securities ("Other Debt") to be issued by the Company pursuant to this
Indenture which rank pari passu with, or subordinated to, the Securities;
provided, however, that Senior Debt shall not be deemed to include (a) any
Debt of the Company which, when incurred and without respect to any
election under Section 1111(b) of the U.S. Bankruptcy Code of 1978, as
amended, was without recourse to the Company, (b) any Debt of the Company
to any of its Subsidiaries, (c) Debt to any employee of the Company, (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; and (e) any other debt securities issued
pursuant to this Indenture.
"Special Record Date" for the payment of any Defaulted interest means
a date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date
specified pursuant to the terms of such Security as the date on which the
principal of such Security or such installment of interest is due and
payable, in the case of such principal, as such date may be shortened or
extended as provided pursuant to the terms of such Security and this
Indenture.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.7 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Tax Event" means the receipt by the Company 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 Original Issue Date of the applicable series of Securities or of
the applicable Capital Securities issued by the affected Republic New York
Trust, there is more than an insubstantial risk that (i) if a Republic New
York Trust holds such Securities, such Republic New York Trust is, or will
be within 90 days of the date of such Opinion of Counsel, subject to United
States Federal income tax with respect to income received or accrued on
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such Securities, (ii) interest payable by the Company on such series of
Securities is not, or within 90 days of the date of such Opinion of
Counsel, will not be, deductible by the Company, in whole or in part, for
United States Federal income tax purposes, or (iii) if a Republic New York
Trust holds such Securities, such Republic New York Trust is, or will be
within 90 days of the date of such Opinion of Counsel, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
"Trust Agreement" means the Declaration of Trust substantially in the
form attached hereto as Annex A, as amended by the form of Amended and
Restated Declaration of Trust substantially in the form attached hereto as
Annex B, or substantially in such form as may be specified as contemplated
by Section 3.1 with respect to the Securities of any series, in each case
as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a Successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder and, if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
77aaa-77bbbb), as amended and as in effect on the date as of this
Indenture, except as provided in Sections 1.7 and 9.5.
"Trust Securities" has the meaning specified in the first recital of
this Indenture.
"Vice President" when used with respect to the Company, means any duly
appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions
precedent (including covenants compliance with which constitutes a
condition precedent), if any, provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel that all such conditions
precedent (including covenants compliance with which constitute a condition
precedent), if any, have been complied with, except that in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided regarding conditions or covenants waived by the
Holders pursuant to Section 10.5) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of. only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given to or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments is or are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1 ) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a Person acting in other than
his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
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(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient
and in accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to take any action
under this Indenture by vote or consent. Except as otherwise provided
herein, such record date shall be the later of 30 days prior to the first
solicitation of such consent or vote or the date of the most recent list of
Securityholders furnished to the Trustee pursuant to Section 7.1 prior to
such solicitation. If a record date is fixed, those persons who were
Securityholders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not
such persons continue to be Holders after such record date, provided,
however, that unless such vote or consent is obtained from the Holders (or
their duly designated proxies) of the requisite principal amount of
Outstanding Securities prior to the date which is the 120th day after such
record date, any such vote or consent previously given shall automatically
and without further action by any Holder be canceled and of no further
effect.
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose (except as otherwise provided in Section 5.1 hereof)
hereunder if in writing and mailed, first class, postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, to each
Holder affected by such event, at the address of such Holder as it appears
in the Securities Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after
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the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
This Indenture will not be qualified under the Trust Indenture Act
except upon the effectiveness of a registration statement as contemplated
in Article XII hereof. If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent
and their successors and assigns, the holders of Senior Debt and the
Holders of the Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 1.13. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or the Securities) payment of
interest or principal need not be made on such date, but may be made on the
next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such next succeeding Business Day)
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 Interest Payment
Date or Redemption Date or at the Stated Maturity, as the case may be, such
payment was originally payable.
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ARTICLE II. SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this
Article, or in such other form or forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.3 with respect to
the authentication and delivery of such Securities.
The Trustee's certificate of authentication shall be substantially in
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods, if required by any
securities exchange on which the Securities may be listed, on a steel
engraved border or steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such securities.
Securities distributed to holders of Book-Entry Capital Securities
shall be distributed in the form of one or more Global Securities
registered in the name of a Depositary or its nominee, and deposited with
the Securities Registrar, as custodian for such Depositary, or held by such
Depositary for credit by the Depositary to the respective accounts of the
beneficial owners of the Securities represented thereby (or such other
accounts they may direct). Securities distributed to holders of Capital
Securities other than Book-Entry Capital Securities shall not be issued in
the form of a Global Security or any other form intended to facilitate
book-entry trading in beneficial interests in such Securities.
SECTION 2.2. Form of Face of Security.
[If this Security is a Global Security, insert-This Security is a
Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of The Depository Trust Company (the
"Depositary") or a nominee of the Depositary. This Security is exchangeable
for Securities registered in the name of a person other than the Depositary
or its nominee only in the limited circumstances described in the Indenture
and no transfer of this Security (other than a transfer of this Security as
a whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary) may
be registered except in limited circumstances.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York) to Republic New
York Corporation or its agent for registration of transfer, exchange or
payment, and any Security issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
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VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(i) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING THE
SECURITIES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(ii) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (iii) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.
REPUBLIC NEW YORK CORPORATION
(Title of Security)
No. $
REPUBLIC NEW YORK CORPORATION, a corporation organized and existing
under the laws of Maryland (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to _________, or its
registered assigns, the principal sum of ___________ Dollars on
_____________ [; provided that the Company may (i) change the maturity date
upon the occurrence of an exchange of the Securities for the Trust
Securities subject to certain conditions set forth in Section 3.14 of the
Indenture, which changed maturity date shall in no case be earlier than ,
or later than __________ and (ii) extend the maturity date subject to
certain conditions specified in Section 3.14 of the Indenture, which
extended maturity date shall in no case be later than _______,___ ]. The
Company further promises to pay interest on said principal sum from
____________, or from the most recent interest payment date (each such
date, an "Interest Payment Date") on which interest has been paid or duly
provided for, [monthly] [quarterly] [semi-annually] [if applicable,
insert-(subject to deferral as set forth herein)], in arrears on [insert
applicable Interest Payment Dates] of each year, commencing ______, _____,
at the rate of ____% per annum, until the principal hereof shall have
become due and payable, [if applicable, insert-plus Additional Interest, if
any,] until the principal hereof is paid or duly provided for or made
available for payment [if applicable, insert-and on any overdue principal
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the rate of ____% per annum, compounded [monthly] [quarterly]
[semi-annually] [annually]. The amount of interest payable for any period
shall be computed on the basis of twelve 30-day months and a 360-day year.
The amount of interest payable for any partial period shall be computed on
the basis of the number of days elapsed in a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this
Security is not a Business Day, then a payment of the interest 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 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 the payment
was originally payable. A "Business Day" shall mean any day other than (i)
a Saturday or Sunday, (ii) 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 (iii) a day on which the Corporate Trust Office of the Trustee
[if applicable, insert-, or the Corporate Trust Office of the Property
Trustee under the Declaration of Trust hereinafter referred to for
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Republic New York Capital ___ ] is closed for business. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, shall be paid to
the Person in whose name this Security (or one or more Predecessor
Securities, as defined in the Indenture) is registered at the close of
business on the Regular Record Date for such interest installment, which
shall be the [insert definition of Regular Record Dates]. Any such interest
installment not so punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
[If applicable, insert-So long as no Event of Default has occurred and
is continuing, the Company shall have the right at any time during the term
of this Security, from time to time, to defer payment of interest on such
Security for up to ____ consecutive [monthly] [quarterly] [semi-annual]
interest payment periods with respect to each deferral period (each an
"Extension Period"), during which Extension Periods the Company shall have
the right to make partial payments of interest on any Interest Payment
Date, and at the end of which the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to the extent
permitted by applicable law); provided, however, that no Extension Period
may extend beyond the Maturity of this Security. During any such Extension
Period, the Company 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 Company's outstanding capital stock or (ii)
make any payment of principal of, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company including other
debt that ranks pari passu with or junior in interest to this Security or
(iii) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company (including
other guarantees) if such guarantee ranks pari passu with or junior in
interest to this Security (other than (a) dividends or distributions in
Common Stock of the Company, (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 Agreement (as defined in the Indenture), (d) purchases or
acquisitions of shares of the Company's Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plan or other contractual obligation of the Company (other than a
contractual obligation ranking pari passu with or junior to these
Securities, (e) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock,
or (f) the purchase of fractional interests in shares of the Company'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 such Extension Period, the Company may further extend
such Extension Period, provided, however, that such extension does not
cause such Extension Period to exceed ____ consecutive [monthly]
[quarterly] [semi-annual] interest payment periods or extend beyond the
Maturity of this Security. Upon the termination of any Extension Period and
the payment of all accrued and unpaid interest and any Additional Interest
then due, the Company 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. The Company shall give the
Holder of this Security and the Trustee notice of its election to begin any
Extension Period at least five Business Days prior to the Interest Payment
Date, [if applicable, insert-or, with respect to the Securities issued to a
Republic New York Trust, prior to the earlier of (i) the date the
Distributions on the Capital Securities would have been payable except for
the election to
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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 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 the Company may elect to begin an Extension Period.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in the United States, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert-; provided, however, that
at the option of the Company payment of any interest may be made (except
Securities in Global form) (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities Register or
(ii) by wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as
specified in the Securities Register].
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take
such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact
for any and all such purposes. Each Holder hereof, by his acceptance
hereof, waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Debt,
whether now outstanding or hereafter incurred, and waives reliance by each
such holder upon said provisions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: REPUBLIC NEW YORK CORPORATION
[Seal]
By: _______________________________
[Chairman and Chief Executive Officer,
President or Vice President]
Attest:
- ------------------------------
[Secretary or Assistant Secretary]
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SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under a Junior Subordinated Indenture, dated as of ____________
(herein called the "Indenture"), between the Company and _____________, as
Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities, and of the
terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof
[, limited in aggregate principal amount to $________ ].
All terms used in this Security that are defined in the Indenture [if
applicable, insert-and in the Amended and Restated Declaration of Trust,
dated as of __________, as amended (the "Declaration of Trust "), among
Republic New York Corporation, as Depositor, and the Trustees named
therein,] shall have the meanings assigned to them in the Indenture or the
Declaration of Trust, as the case may be.
[If applicable, insert-On or after __________, the Company may at any
time, at its option, subject to the terms and conditions of Article XI of
the Indenture and subject to the Company having received prior approval of
the Federal Reserve if then required under applicable capital guidelines of
the Federal Reserve, redeem this Security in whole or in part at any time
or from time to time prior to maturity, at a redemption price (the
"Optional Repayment Price") equal to the following prices, expressed in
percentages of the principal amount of the Securities together with accrued
but unpaid interest to but excluding the date fixed for redemption. If
redeemed during the 12-month period beginning ________:
Redemption
Year Price
[ Insert year and redemption prices ]
and at 100% on or after ________________.]
[If applicable, insert-If a Tax Event in respect of the Republic New
York Trust shall occur and be continuing, the Company 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, redeem this Security within 90 days of the occurrence of such Tax
Event, in whole but not in part, subject to the provisions of Section 11.7
and the other provisions of Article XI of the Indenture, at a redemption
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest, including Additional Interest, if any, to the date fixed for
redemption.]
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In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation
hereof.
[If the Security is not a Discount Security,-If an Event of Default
with respect to Securities of this series shall occur and be continuing,
the principal of this Security may be declared due and payable in the
manner, with the effect and subject to the conditions provided in the
Indenture].
[If the Security is a Discount Security,-If an Event of Default with
respect to Securities of this series shall occur and be continuing, an
amount of principal of this Security may be declared due and payable in the
manner, with the effect and subject to the conditions provided in the
Indenture. Such amount shall be equal to [-insert formula for determining
the amount]. Upon payment (i) of the amount of principal so declared due
and payable and (ii) of interest on any overdue principal and overdue
interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect
of the payment of the principal of and interest, if any, on this Security
shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the Company and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the
rights and obligations of the Company and of the Holders of the Securities,
with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series to be affected by such
supplemental indenture. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
[If the Security is not a Discount Security,-As provided in and
subject to the provisions of the Indenture, if an Event of Default with
respect to the Securities of this series at the time Outstanding occurs and
is continuing, then and in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this
series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided, however, that,
in the case of the Securities of this series issued to a Republic New York
Trust, if upon an Event of Default, the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series
fails to declare the principal of all the Securities of this series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the corresponding series of Capital Securities then
outstanding shall have such right by a notice in writing to the Company and
the Trustee. The Holders of a majority in aggregate principal amount of the
Outstanding Securities of these Securities may annul such declaration and
waive the default if the default (other than the non-payment of the
principal of these 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 Trustee. Should the Holders of these 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. Upon any such declaration such specified amount of and the
accrued interest (including any Additional Interest) on all the Securities
of this series shall become immediately due and payable, provided that the
payment of principal and interest (including any Additional Interest) on
such Securities shall remain subordinated to the extent provided in Article
XIV of the Indenture. ]
[If the Security is a Discount Security,-As provided in and subject to
the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding
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<PAGE>
occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than such portion of the principal amount as may be
specified in the terms of this series of all the Securities of this series
to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), provided that, in the case of the
Securities of this series issued to a Republic New York Trust, if upon an
Event of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series fails to
declare the principal of all the Securities of this series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the corresponding series of Capital Securities then
outstanding shall have such right by a notice in writing to the Company and
the Trustee. The Holders of a majority in aggregate principal amount of the
Outstanding Securities of these Securities may annul such declaration and
waive the default if the default (other than the non-payment of the
principal of these 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 Trustee. Should the Holders of these 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. Upon any such declaration such specified amount of and the
accrued interest (including any Additional Interest) on all the Securities
of this series shall become immediately due and payable, provided that the
payment of principal and interest (including any Additional Interest) on
such Securities shall remain subordinated to the extent provided in Article
XIII of the Indenture.]
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium,
if any) and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained pursuant to
Section 10.2 of the Indenture duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Securities Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing and thereupon one or more new Securities of this
series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_______ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of such series of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security intend that such Security constitute
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<PAGE>
indebtedness and agree to treat such Security as indebtedness for all
United States Federal, state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 2.4. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in
substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable
for Securities registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described
in the Indenture and may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary."
SECTION 2.5. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within mentioned
Indenture.
-----------------------------------
as Trustee
By: _______________________________
Authorized Signatory
ARTICLE III. THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and
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<PAGE>
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Section 3.4, 3.6, 3.7, 9.6
or 11.6); provided, however, that the authorized aggregate principal amount
of such series may be increased above such amount by a Board Resolution to
such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination
thereof;
(d) the rate or rates, if any, at which the Securities of such series
shall bear interest, if any, the rate or rates and extent to which
Additional Interest, if any, shall be payable in respect of any Securities
of such series, the Interest Payment Dates on which such interest shall be
payable, the right, pursuant to Section 3.12 or as otherwise set forth
therein, of the Company to defer or extend an Interest Payment Date, and
the Regular Record Date for the interest payable on any Interest Payment
Date or the method by which any of the foregoing shall be determined;
(e) the place or places where the principal of (and premium, if any)
and interest on the Securities of such series shall be payable, the place
or places where the Securities of such series may be presented for
registration of transfer or exchange, and the place or places where notices
and demands to or upon the Company in respect of the Securities of such
series may be made;
(f) the period or periods within or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which
the Securities of such series may be redeemed, in whole or in part, at the
option of the Company;
(g) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, or at the option of a Holder
thereof, and the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which and the other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(i) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any) and
interest, if any, on the Securities of the series shall be payable, or in
which the Securities of the series shall be denominated and the manner of
determining the equivalent thereof in Dollars for purposes of the
definition of the term "Outstanding";
(j) the additions, modifications or deletions, if any, in the Events
of Default or covenants of the Company set forth herein with respect to the
Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect
to the Securities of such series as shall be necessary to permit or
facilitate the issuance of the Securities of such series in bearer form,
registrable or not registrable as to principal, and with or without
interest coupons;
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<PAGE>
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the
manner in which such amounts will be determined;
(n) the issuance of a temporary Global Security representing all of
the Securities of such series and exchange of such temporary Global
Security for definitive Securities of such series;
(o) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Securities, which Depositary shall be a clearing
agency registered under the Securities Exchange Act of 1934, as amended;
(p) the appointment of any Paying Agent or Agents for the Securities
of such series;
(q) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the
additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(r) the form or forms of the Declaration of Trust, Amended and
Restated Declaration of Trust and Guarantee Agreement, if different from
the forms attached hereto as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in
right of payment, whether such other series of Securities are Outstanding
or not; and
(t) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or
in or pursuant to such Board Resolution and set forth in such Officers'
Certificate or in any such indenture supplemental hereto.
Unless otherwise provided with respect to the Securities of any
series, at the option of the Company, interest on the Securities of any
series that bears interest may be paid (i) by mailing a check to the
address of the person entitled thereto as such address shall appear in the
Securities Register or (ii) by wire transfer in immediately available funds
at such place and to such account as may be designated by the person
entitled thereto as specified in the Securities Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without
coupons and shall be issuable in denominations of $1,000 and any integral
multiple thereof, unless otherwise specified as contemplated by Section
3.1.
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SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents under
its corporate seal reproduced or impressed thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities. At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication. Securities may be authenticated on original
issuance from time to time and delivered pursuant to such procedures
acceptable to the Trustee ("Procedures") as may be specified from time to
time by Company Order. Procedures may authorize authentication and delivery
pursuant to oral instructions of the Company or a duly authorized agent,
which instructions shall be promptly confirmed in writing.
Prior to the delivery of a Security in any such form to the Trustee
for authentication, the Company shall deliver to the Trustee the following:
(a) A Company Order requesting the Trustee's authentication and
delivery of all or a portion of the Securities of such series, and if less
than all, setting forth procedures for such authentication;
(b) The Board Resolution by or pursuant to which such form of Security
has been approved, and the Board Resolution, if any, by or pursuant to
which the terms of the Securities of such series have been approved, and,
if pursuant to a Board Resolution, an Officers' Certificate describing the
action taken;
(c) An Officers' Certificate dated the date such certificate is
delivered to the Trustee, stating that all conditions precedent provided
for in this Indenture relating to the authentication and delivery of
Securities in such form and with such terms have been complied with; and
(d) An Opinion of Counsel stating that (i) the form of such Securities
has been duly authorized and approved in conformity with the provisions of
this Indenture; (ii) the terms of such Securities have been duly authorized
and determined in conformity with the provisions of this Indenture, or, if
such terms are to be determined pursuant to Procedures, as defined above,
when so determined such terms shall have been duly authorized and
determined in conformity with the provisions of this Indenture; and (iii)
Securities in such form when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the Trustee
in accordance with this Indenture within the authorization as to aggregate
principal amount established from time to time by the Board of Directors
and sold in the manner specified in such Opinion of Counsel, will be the
legal, valid and binding obligations of the Company entitled to the
benefits of this Indenture, subject to applicable bankruptcy,
reorganization, insolvency and similar laws generally affecting creditors'
rights, to general equitable principles and except as enforcement thereof
may be limited by (A) requirements that a claim with respect to any
Securities denominated other than in Dollars (or a Foreign Currency or
currency unit judgment in respect of such claim) be converted into Dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay or prohibit
the making of
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<PAGE>
payments in Foreign Currencies or currency units or payments outside the
United States, and subject to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of such
Securities; provided, however, that the Trustee shall be entitled to
receive the documents referred to in clauses (b), (c) above and this clause
(d) only at or prior to the first request of the Company to the Trustee to
authenticate Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture, or
be valid or obligatory for any purpose, unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by the manual signature of one of its
authorized officers, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Securities of such series in
lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or agency of the
Company designated for that purpose without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations having the same Original Issue Date
and Stated Maturity and having the same terms as such temporary Securities.
Until so exchanged, the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (a) such Depositary advises the
Trustee in writing that such Depositary is no longer willing or able to
properly discharge its responsibilities as Depositary with respect to such
Global Security, and the Company is unable to locate a qualified successor,
(b) the Company executes and delivers to the Trustee a Company Order
stating that the Company elects to terminate the book-entry system through
the Depositary, (c) there shall have occurred and be continuing an Event of
Default or (d) pursuant to the following sentence. All or any portion of a
Global Security may be exchanged for a
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<PAGE>
Security that has a like aggregate principal amount and is not a Global
Security upon 20 days' prior request made by the Depositary or its Agent
Member to the Securities Registrar.
(c) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Securities Registrar for exchange or
cancellation as provided in this Article III. If any Global Security is to
be exchanged for other Securities or cancelled in part, or if another
Security is to be exchanged in whole or in part for a beneficial interest
in any Global Security, then either (i) such Global Security shall be so
surrendered for exchange or cancellation as provided in this Article III or
(ii) the principal amount thereof shall be reduced, subject to Section
3.6(b)(iv), or increased by an amount equal to the portion thereof to be so
exchanged or cancelled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case
may be, by means of an appropriate adjustment made on the records of the
Securities Registrar, whereupon the Trustee shall instruct the Depositary
or its authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Security by the
Depositary, accompanied by registration instructions, the Trustee shall,
subject to Section 3.5(b) and as otherwise provided in this Article III,
authenticate and deliver any Securities issuable in exchange for such
Global Security (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Article III, Section 9.6 or 11.6
or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes
under this Indenture and the Securities, and owners of beneficial interests
in a Global Security shall hold such interest pursuant to the rules and
procedures of the Depositary. Accordingly, any such owner's beneficial
interests in a Global Security shall be shown only on, and the transfer of
such interest shall be effected only through, records maintained by the
Depositary or its nominee or its Agent Members. Neither the Trustee nor the
Securities Registrar shall have any liability in respect of any transfers
effected by the Depositary.
(f) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to
those established by law and agreements between such owners and the
Depositary and/or its Agent Members.
SECTION 3.6. Registration, Transfer and Exchange Generally; Certain
Transfers and Exchanges; Restricted Securities Legends.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities. Such register is herein
sometimes referred to as the "Securities Register." The Trustee is hereby
appointed "Securities Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated for that purpose the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same
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series of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the
same terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated
Maturity and having the same terms, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall
(if so required by the Company or the Securities Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Securities.
Notwithstanding any of the foregoing, any Global Security of a series
shall be exchangeable pursuant to this Section 3.6 for Securities
registered in the names of Persons other than the Depositary for such
Security or its nominee only if (i) such Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Global
Security and no Successor Depositary shall have been appointed, or if at
any time such Depositary ceases to be a "clearing agency" registered under
the Securities Exchange Act of 1934, as amended, at a time when such
Depositary is required to be so registered to act as such Depositary, (ii)
the Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable or (iii) there shall have occurred
and be continuing an Event of Default with respect to the Securities of
such series. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such
names as such Depositary shall direct.
Notwithstanding any other provision in this Indenture, a Global
Security may not be transferred except as a whole by the Depositary with
respect to such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security
of any series during a period beginning at the opening of business 15 days
before the day of selection for redemption of Securities pursuant to
Article XI and ending at the close of business on the day of mailing of
notice of redemption or (b) to transfer or exchange any Security so
selected for redemption in whole or in part, except, in the case of any
Security to be redeemed in part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of the Indenture, transfers and exchanges of Securities and
beneficial interests in a Global Capital Security of the kinds specified in
this Section 3.6(b) shall be made only in accordance with this Section
3.6(b).
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(i) Restricted Non-Global Security to Global Security. If the
Holder of a Restricted Security (other than a Global Security) wishes
at any time to transfer all or any portion of such Security to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in a Global Security, such transfer may be effected only in
accordance with the provisions of this clause (b)(i) and subject to
the rules and procedures of the Depositary. Upon receipt by the
Securities Registrar of such Security as provided in Section 3.6(a)
and instructions satisfactory to the Securities Registrar directing
that a beneficial interest in the Global Security in a specified
principal amount not greater than the principal amount of such
Security be credited to a specified Agent Member's account, then the
Securities Registrar shall cancel such Security (and issue a new
Security in respect of the untransferred portion thereof) as provided
in Section 3.6(a) and increase the aggregate principal amount of the
Global Security by the specified principal amount as provided in
Section 3.5(c).
(ii) Non-Global Security to Non-Global Security. A Security that
is not a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is not
a Global Security as provided in Section 3.6(a).
(iii) Exchanges between Global Security and Non-Global Security.
A beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 3.5.
(iv) Limitations relating to Principal Amount. Notwithstanding
any other provision of this Indenture and unless otherwise specified
as permitted by Section 3.1, Securities or portions thereof may be
transferred or exchanged only in principal amounts of not less than
$1,000 and integral multiples of $1,000 in excess thereof. Any
transfer, exchange or other disposition of Securities in contravention
of the Section 3.6(b)(iv) shall be deemed to be void and of no legal
effect whatsoever, any such transferee shall be deemed not to be the
Holder or owner of any beneficial interest in such Securities for any
purpose, including but not limited to the receipt of interest payable
on such Securities, and such transferee shall be deemed to have no
interest whatsoever in such Securities.
(c) Restricted Securities Legend. Except as set forth below, all
Securities shall bear a Restricted Securities Legend, subject to the
following:
(i) subject to the following clauses of this Section 3.6(c), a
Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Restricted Securities Legend.
(ii) subject to the following clauses of this Section 3.6(c), a
new Security which is not a Global Security and is issued in exchange
for another Security (including a Global Security) or any portion
thereof, upon transfer or otherwise, shall, if such new Security is
required pursuant to Section 3.6(b)(ii) or (iii) to be issued in the
form of a Restricted Security, bear a Restricted Securities Legend;
(iii) a new Security which does not bear a Restricted Securities
Legend may be issued in exchange for or in lieu of a Restricted
Security (other than a Global Security) or any portion thereof which
bears such a legend if, in the Company's judgment, placing such a
legend upon such new Security is not necessary to ensure compliance
with the registration requirements of the Securities Act, and the
Trustee, at the written direction of the Company in the form of an
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Officers' Certificate, shall authenticate and deliver such a new
Security as provided in this Article III; and
(iv) notwithstanding the foregoing provisions of this Section
3.6(c), a Successor Security of a Security that does not bear a
Restricted Securities Legend shall not bear such form of legend unless
the Company has reasonable cause to believe that such Successor
Security is a "restricted security" within the meaning of Rule 144, in
which case the Trustee, at the written direction of the Company in the
form of an Officers' Certificate, shall authenticate and deliver a new
Security bearing a Restricted Securities Legend in exchange for such
Successor Security as provided in this Article III.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with
such security or indemnity as may be required by the Company or the Trustee
to save each of them harmless, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new Security of the
same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same Interest Rate
as such mutilated Security, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide
purchaser, the issuing Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same issue and series of like
tenor and principal amount, having the same Original Issue Date and Stated
Maturity and bearing the same Interest Rate as such destroyed, lost or
stolen Security, and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.8. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date, shall
be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest in respect of Securities of such
series, except that, unless otherwise provided in the Securities of such
series, interest payable on the Stated Maturity of a Security shall be paid
to the Person to whom principal is paid. The initial payment of interest on
any Security of any series which is issued between a Regular Record Date
and the related Interest Payment Date shall be payable as provided in such
Security or in the Board Resolution pursuant to Section 3.1 with respect to
the related series of Securities.
Any interest on any Security which is payable, but is not timely paid
or duly provided for, on any Interest Payment Date for Securities of such
series (herein called "Defaulted Interest"), shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in Clause (1) or
(2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series in respect of
which interest is in default (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first class, postage
prepaid, to each Holder of a Security of such series at the address of such
Holder as it appears in the Securities Register not less than 10 days prior
to such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in a newspaper, customarily published in the
English language on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, but such publication shall not
be a condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of the series in respect of
which interest is in default may be listed and, upon such notice as may be
required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 3.9. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Security is registered as the owner
of such Security for the purpose of receiving payment of principal of and
(subject to Section 3.8) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary. No holder of any beneficial interest
in any Global Security held on its behalf by a Depositary shall have any
rights under this Indenture with respect to such Global Security, and such
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company or the Trustee from giving effect to any written
certification, proxy, or other authorization furnished by a Depositary or
impair, as between the Depositary and such holders of beneficial interests,
the operation of customary practices governing the exercise of the rights
of the Depositary (or its nominee) as Holder of any Security.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and Securities
surrendered directly to the Trustee for any such purpose shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities shall be destroyed by
the Trustee and the Trustee shall deliver to the Company a certificate of
such destruction.
SECTION 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
period shall be computed on the basis of a 360-day year of twelve 30-day
months and interest on the Securities of each series for any partial period
shall be computed on the basis of the number of days elapsed in a 360-day
year of twelve 30-day months.
SECTION 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 3.1 with respect to the
Securities of a particular series, provided that no Event of Default has
occurred and is continuing with respect to the Securities, the Company
shall have the right, at any time or from time to time during the term of
such series, to defer the payment of interest on such Securities for such
period or periods as may be specified as contemplated by Section 3.1 (each,
an "Extension Period") during which Extension Periods the Company shall
have the right to make partial payments of interest on any Interest Payment
Date. No Extension Period shall end on a date other than an Interest
Payment Date. At the end of any such Extension Period the Company shall pay
all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the
Securities of such series to the extent permitted by
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applicable law), provided, however, that no Extension Period may extend
beyond the Maturity of these Securities. During an Extension Period,
interest will continue to accrue and holders of the Securities will be
required to accrue interest income for U.S. Federal income tax purposes.
During any such Extension Period, the Company shall 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 Company's capital stock, or
(ii) make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company (including
Other Debt) that rank pari passu with or junior in interest to the
Securities of such series or (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any Subsidiary of
the Company (including Other Guarantees) if such guarantee ranks pari passu
with or junior in interest to the Securities of such series (other than (a)
dividends or distributions in common stock of the Company, (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 Agreement, (d) purchases or
acquisitions of shares of the Company's Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plan or other contractual obligation of the Company (other than a
contractual obligation ranking pari passu with or junior to these
Securities, (e) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock,
or (f) the purchase of fractional interests in shares of the Company'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 such Extension Period, the Company may further extend
such Extension Period; provided, however, that no Extension Period shall
exceed the period or periods specified in such Securities or extend beyond
the Maturity of such Securities. Upon termination of any Extension Period
and upon the payment of all accrued and unpaid interest and any Additional
Interest then due on any Interest Payment Date, the Company 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. The Company shall give the Holders of the Securities of such
series and the Trustee and the Property Trustee notice of its election to
begin any such Extension Period (or an extension thereof) at least five
Business Days prior to the Interest Payment Date or, with respect to the
Securities of a series issued to a Republic New York Trust, prior to the
earlier of (i) the date the Distributions on the Trust Securities of such
Republic New York Trust would have been payable except for the election to
begin or extend such Extension Period or (ii) the date the Administrative
Trustees of such Republic New York Trust are required to give notice to any
automated quotation system or to holders of Trust 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 Company may elect to begin an Extension
Period.
SECTION 3.13. Right of Set-Off.
With respect to the Securities of a series issued to a Republic New
York Trust, notwithstanding anything to the contrary in the Indenture, the
Company shall have the right to set-off any payment it is otherwise
required to make thereunder in respect of any such Security to the extent
the Company has theretofore made, or is concurrently on the date of such
payment making, a payment under the Republic New York Guarantee relating to
such Security or under Section 5.8 of the Indenture.
SECTION 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by
its acceptance of a Security or a beneficial interest
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therein, the Holder of, and any Person that acquires a beneficial interest
in, such Security intend that such Security constitute indebtedness and
agree to treat such Security as indebtedness for all United States Federal,
state and local tax purposes.
SECTION 3.15. Extension of Stated Maturity; Adjustment of Stated
Maturity Upon an Exchange.
If specified as contemplated by Section 3.1 with respect to the
Securities of a particular series, the Company shall have the right to (a)
change the Maturity Date of the Securities of such series upon the
liquidation of a Republic New York Trust and the exchange of such
Securities for the Capital Securities of such Republic New York Trust and
(b) extend the Stated Maturity for the Securities of such series; provided,
however, that at the time any election to extend the Maturity Date is made
and at the time of such extension, (i) the Company is not in bankruptcy,
otherwise insolvent or in liquidation, (ii) the Company is not in default
in the payment of any interest or principal on the Securities of such
series and no deferred interest payments thereon have accrued, (iii) the
applicable Republic New York Trust is not in arrears on payments of
Distributions on its Capital Securities and no deferred Distributions
thereon are accumulated, and (iv) the extended Stated Maturity is no later
than the 49th anniversary of the initial issuance of the Capital Securities
of the applicable Republic New York Trust; provided, further, however,
that, if the Company exercises its right to liquidate the Republic New York
Trust and exchange the Securities of such series for the Capital Securities
of such Republic New York Trust as specified in clause (a) above, any
changed Stated Maturity of the Securities of such series shall be no
earlier than the date that is five years after the issuance of the Capital
Securities and no later than the date 30 years (plus an extended term of up
to an additional 19 years if the above-referenced conditions are satisfied)
after the date of the initial issuance of the Capital Securities of the
applicable Republic New York Trust.
SECTION 3.16. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption or other related material as a convenience to
Holders; provided, however, that any such notice or other related material
may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice
of a redemption or other related material and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
ARTICLE IV. SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture
This Indenture shall cease to be of further effect (except as to (i)
any surviving rights of transfer, substitution and exchange of Securities,
(ii) rights hereunder of Holders to receive payments of principal of (and
premium, if any) and interest on the Securities and other rights, duties
and obligations of the Holders as beneficiaries hereof with respect to the
amounts, if any, deposited with the Trustee pursuant to this Article IV and
(iii) the rights and obligations of the Trustee hereunder), and the
Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
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(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.7 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit,
and the Company, in the case of Clause (B)(i) or (B)(ii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which the
Securities of such series are payable sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated
Maturity;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1, shall be held in
trust and applied by the Trustee, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for the payment of which such
money or obligations have been deposited with or received by the Trustee;
provided, however, that such moneys need not be segregated from other funds
except to the extent required by law.
ARTICLE V. REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be
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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):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it
becomes due and payable, and continuance of such default for a period of 30
days (subject to the deferral of any due date in the case of an Extension
Period); or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which or the breach of
which is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied;
or
(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of its
property or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit for
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by the Company in furtherance
of any such action; or
(6) only insofar as concerns the obligations relating to payments due
in connection with any Trust Securities issued by such Republic New York
Trust, the institution by any Republic New York Trust of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of such
Republic New York Trust or of any substantial part of its property, or the
making by it of an assignment for the benefit for creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt, or the
taking of corporate action by such Republic New York Trust in furtherance
of any such action; or
(7) any other Event of Default with respect to Securities of that
series.
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SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or,
if the Securities of that series are Discount Securities, such portion of
the principal amount as may be specified in the terms of that series) of
all the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders),
provided, however, that, in the case of the Securities of a series issued
to a Republic New York Trust, if, upon an Event of Default, the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series fail to declare the principal of all the
Securities of that series to be immediately due and payable, the holders of
at least 25% in aggregate Liquidation Amount of the corresponding series of
Capital Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of these
Securities may annul such declaration and waive the default if the default
(other than the non-payment of the principal of these 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 Trustee. Should the
Holders of these 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. Upon any such declaration such
principal amount (or specified amount) of and the accrued interest
(including any Additional Interest) on all the Securities of such series
shall become immediately due and payable, provided, however, that the
payment of principal and interest (including any Additional Interest) on
such Securities shall remain subordinated to the extent provided in Article
XIII.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including any
Additional Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the
Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which has become due solely by such acceleration, have been cured or waived
as provided in Section 5.13.
The holders of a majority in aggregate outstanding principal amount of
the Securities of a series affected thereby may, on behalf of the holders
of all the Securities of such series, waive any past default, except a
default in the payment of principal of (or premium, if any) or interest
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise
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than by acceleration has been deposited with the Trustee) or a default in
respect of a covenant or provision which under this Indenture cannot be
modified or amended without the consent of the holder of each outstanding
Security of such series and, in the case of Securities of a series issued
to a Republic New York Trust, should the holders of such Securities fail to
annul such declaration and waive such default, the holders of a majority in
aggregate Liquidation Amount of the related series of Capital Securities
shall have such right. The Company is required to file annually with the
Trustee a certificate as to whether or not the Company is in compliance
with all the conditions and covenants applicable to it under this
Indenture.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to
Securities of a series all or part of which is represented by a Global
Security, a record date shall be established for determining Holders of
Outstanding Securities of such series entitled to join in such notice,
which record date shall be at the close of business on the day the Trustee
receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record
date; provided however, that, unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become effective
by virtue of the requisite percentage having joined in such notice prior to
the day which is 90 days after such record date, such notice of declaration
of acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a
new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written
notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to
the provisions of this Section 5.2.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (and premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal, including any sinking fund
payment or analogous obligations (and premium, if any) and interest
(including any Additional Interest); and, in addition thereto, all amounts
owing to the Trustee under Section 6.7 and Section 10.6.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon the Securities, wherever situated.
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If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue
principal (and premium, if any) or interest (including any Additional
Interest)) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest (including any Additional Interest)
owing and unpaid in respect to the Securities and to file such other
papers or documents as may be necessary or advisable and to take any
and all actions as are authorized under the Trust Indenture Act in
order to have the claims of the Holders and any predecessor to the
Trustee under Section 6.7 and of the Holders allowed in any such
judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section 5.6;
and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee for
distribution in accordance with Section 5.6, and in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for
the election of a trustee in bankruptcy or similar official and be a member
of a creditors' or other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any
of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of all the amounts owing
the Trustee and any predecessor Trustee under Section 6.7, its agents and
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counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money or property on account of principal
(or premium, if any) or interest (including any Additional Interest), upon
presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid upon such
series of Securities for principal (and premium, if any) and interest
(including any Additional Interest), in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
series of Securities for principal (and premium, if any) and interest
(including any Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7. Limitation on Suits.
No Holder of any Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing itself
of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities, or to obtain or to seek to
obtain priority or
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preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.8) interest (including any Additional Interest) on such Security
on the respective Stated Maturities expressed in such Security and to
institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder. In the case of
Securities of a series issued to a Republic New York Trust, any holder of
the corresponding series of Capital Securities shall have the right, upon
the occurrence of an Event of Default described in Section 5.1(1) or 5.1(2)
hereof, to institute a suit directly against the Company for enforcement of
payment to such Holder of principal of (and premium, if any) and (subject
to Section 3.8) interest (including any Additional Interest) on the
Securities having a principal amount equal to the aggregate Liquidation
Amount of the Capital Securities of the corresponding series held by such
Holder. The holders of any corresponding series of Capital Securities will
not be able to exercise the rights set forth in the immediately preceding
sentence under any circumstances other than as expressed therein unless
there shall have been an Event of Default under the Trust Agreement.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case the Company,
the Trustee and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
Except as otherwise provided in the last paragraph of Section 3.7, no
delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would be unjustly prejudicial to the Holders not
joining in any such direction or would involve the Trustee in personal
liability.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such
trust or power, with respect to Securities of a series all or part of which
is represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to
join in such notice, which record date shall be at the close of business on
the day the Trustee receives such notice. The Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled
to join in such notice, whether or not such Holders remain Holders after
such record date; provided, however, that, unless the Holders of a majority
in principal amount of the Outstanding Securities of such series shall have
joined in such notice prior to the day which is 90 days after such record
date, such notice shall automatically and without further action by any
Holder be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new notice identical to a notice which
has been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the
provisions of this Section 5.12.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder and its
consequences with respect to such series except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security of such
series, or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest (including any Additional Interest) on any Security on
or after the respective Stated Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VI. THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct except that:
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(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the 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 Holders pursuant to Section 5.12 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities
of such series.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk
or liability is not assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders
of Securities of such series, as their names and addresses appear in the
Securities Register, notice of such default hereunder known to a
Responsible Officer of the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series, the
Trustee shall be fully 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 Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided, further, however, that,
in the case of any default of the character specified in Section 5.1(3), no
such notice to Holders of Securities of such series shall be given until at
least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the 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, Security or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) shall be entitled to receive
and may, in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the 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, indenture, Security or other paper or document, but the Trustee in
its discretion may make such inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Indenture;
(i) the Trustee shall not be charged with knowledge of any Event of
Default unless either (1) a Responsible Officer of the Trustee shall have
actual knowledge or (2) the Trustee shall have received notice thereof in
accordance with Section 1.5(1) hereof from the Company or a Holder; and
(j) no permissive power or authority available to the Trustee shall be
construed as a duty.
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or any offering or
disclosure materials prepared in connection therewith. The Trustee shall
not be accountable for the use or application by the Company of the
Securities or the proceeds thereof.
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SECTION 6.5. May Hold Securities.
The Trustee, any Paying Agent, Securities Registrar or any other agent
of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Securities Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 6.7. Compensation and Reimbursement.
The Company, as borrower, agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder in such amounts as the Company
and the Trustee shall agree from time to time (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee, its officers, agents, directors and
employees for, and to hold them harmless against, any loss, liability or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or bad
faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
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 obligations of the Company under this Section 6.7 shall survive
the termination of this Indenture or the earlier resignation or removal of
the Trustee.
To secure the Company's payment obligations in this Section, the
Company and the Holders agree that the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee.
Such lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Code of 1978, as amended, or any
successor statute.
SECTION 6.8. Disqualification, Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act.
Nothing herein shall prevent the Trustee from filing with the
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Commission the application referred to in the second-to-last paragraph of
Section 301(b) of the Trust Indenture Act.
SECTION 6.9. Corporate Trustee Required, Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of the
United States of America or of any State, Territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority, or
(b) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized under
such laws to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to the supervision or
examination applicable to United States institutional trustees,
in either case having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section,
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. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall
serve as Trustee for the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
Successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the Successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
an instrument of acceptance by a Successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a Successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee, or (ii) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a Successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a Successor Trustee with respect
to the Securities of that or those series. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
Successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the Successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the Successor Trustee with
respect to the Securities of such series and supersede the Successor
Trustee appointed by the Company. If no Successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided,
any Holder who has been a bona fide Holder of a Security for at least six
months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a Successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a Successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names and
addresses appear in the Securities Register. Each notice shall include the
name of the Successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a Successor Trustee with
respect to all Securities, every such Successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such Successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the Successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such Successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such Successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a Successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each Successor Trustee with respect to the
Securities of one or more series shall execute and deliver an instrument or
an indenture supplemental hereto wherein each Successor Trustee shall
accept such appointment and which
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(1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each Successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
Successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing herein or in such
instrument or supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and upon the execution and
delivery of such instrument or supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent
provided therein and each such Successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts, and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such Successor Trustee
relates; but, on request of the Company or any Successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such Successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment
of such Successor Trustee relates.
(c) Upon request of any such Successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such Successor Trustee all rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No Successor Trustee shall accept its appointment unless at the
time of such acceptance such Successor Trustee shall be qualified and
eligible under this Article. In the event that the Trust Indenture Act
applies to this Indenture at the time that any Successor Trustee is
appointed, such Successor Trustee shall qualify under such Act.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article (including qualification under the Trust
Indenture Act, if applicable), without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated, and in case any Securities shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor Trustee or in the name of
such Successor Trustee, and in all cases the certificate of authentication
shall have the full force which it is provided anywhere in the Securities
or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor).
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SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an authenticating agent or agents (each, an
"Authenticating Agent") with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a corporation organized and doing business under the
laws of the United States of America, or of any State, Territory or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If
such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of an Authenticating
Agent shall be the successor Authenticating Agent hereunder, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provision of this
Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities referred to in the within mentioned
Indenture.
-----------------------------
As Trustee
By: _________________________
As Authenticating Agent
By: _________________________
Authorized Signatory
SECTION 6.15. Trustee's Rights and Obligations After Exchange and
Registration.
Following the exchange of the Capital Securities for registered
securities, pursuant to Article XII hereof, and the qualification of this
Indenture under the Trust Indenture Act, the Trustee shall have and be
subject to all the duties and responsibilities specified with respect to an
indenture trustee under the Trust Indenture Act. Subject to such
provisions, the Trustee is under no obligation to exercise any of the
powers vested in it by this Indenture at the request of any holder of the
Securities, unless offered indemnity to its satisfaction by such holder
against the costs, expenses and liabilities which might be incurred
thereby. The Trustee will not be required to expend or risk its own funds
or otherwise incur personal financial liability in the performance of its
duties if the Trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it. Notwithstanding the foregoing,
nothing in this Section 6.15 shall be deemed to abrogate any of the rights,
indemnities or protections otherwise provided to the Trustee under this
Indenture.
ARTICLE VII. HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 15 and July 15,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such January 1 and July 1, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
excluding from any such list names and addresses received by the Trustee in
its capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as
provided in the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of information as to the names and addresses of the
Holders made pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act, at the times and in the manner provided pursuant
thereto.
(b) Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance
of Securities under this Indenture.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each securities exchange upon
which the Securities are listed and also with the Commission. The Company
will notify the Trustee whenever the Securities are listed on any
securities exchange.
SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided in the Trust Indenture Act;
provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is required to be filed with the Commission.
Notwithstanding that the Company may not be required to remain subject to
the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company shall continue to file with the
Commission and provide the Trustee with the annual reports and the
information, documents and other reports which are specified in Sections 13
and 15(d) of the Securities Exchange Act of 1934. The Company also shall
comply with the other provisions of Trust Indenture Act Section 314(a).
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease it properties and assets substantially
as an entirety to any Person, and no Person shall consolidate with or merge
with or into the Company or convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge with or into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the
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corporation formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and
existing under the laws of the United States of America or any State or the
District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest (including any Additional Interest)
on all the Securities and the performance of every covenant and every
obligation of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing;
(3) in the case of the Securities of a series issued to a Republic New
York Trust, such consolidation, merger, conveyance, transfer or lease is
permitted under the related Trust Agreement and Republic New York Guarantee
and does not give rise to any breach or violation of the related Trust
Agreement or Republic New York Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and any such supplemental indenture complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with; and the Trustee,
subject to Section 6.1, may rely upon such Officers' Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies
with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its
properties and assets substantially as an entirety to any Person in
accordance with Section 8.1, the successor corporation formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein; and in the event of any such conveyance, transfer or
lease the Company shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate
and shall deliver any Securities which previously shall have been signed
and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities
thereafter to be issued as may be appropriate.
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ARTICLE IX. SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form
satisfactory, to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon
the Company; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(5) to add any additional Events of Default; or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (7)
shall not materially adversely affect the interest of the Holders of
Securities of any series or, in the case of the Securities of a series
issued to a Republic New York Trust and for so long as any of the
corresponding series of Capital Securities shall remain outstanding, the
holders of such Capital Securities; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a Successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any
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provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.12 or as otherwise
specified as contemplated by Section 3.1 with respect to the extension of
the interest payment period of the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest
(including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or reduce any
premium payable upon the redemption thereof, or reduce the amount of
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the place of payment where, or the coin or currency in
which, any Security or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
date fixed for redemption thereof), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.5, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with
respect to the subordination of Outstanding Securities of any series in a
manner adverse to the Holders thereof;
provided that, in the case of the Securities of a series issued to a
Republic New York Trust, so long as any of the corresponding series of
Capital Securities remains outstanding, no such amendment shall be made
that adversely affects the holders of such Capital Securities, and no
termination of this Indenture shall occur, and no waiver of any Event of
Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority
of the aggregate Liquidation Amount of such Capital Securities then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and, subject to Section 3.8,
unpaid interest (including any Additional Interest) thereon have been paid
in full; and provided, further, however, that in the case of the Securities
of a series issued to a Republic New York Trust, so long as any of the
corresponding series of Capital Securities remain outstanding, no amendment
shall be made to Section 5.8 of this Indenture without the prior consent of
the holders of each Preferred Security then outstanding unless and until
the principal (and premium, if any) of the Securities of such series and
all accrued and (subject to Section 3.8) unpaid interest (including any
Additional Interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected
in conclusively relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that all conditions
precedent have been complied with. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise, or which may subject it to liability or be contrary to
applicable law.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
No supplemental indenture will be qualified or executed pursuant to
the Trust Indenture Act unless this Indenture is so qualified, or in
connection with Capital Securities which are registered under the
Securities Exchange Act of 1934, as amended, upon the effectiveness of a
registration statement and the consummation of an exchange offer pursuant
to a Registration Rights Agreement as contemplated in Article XII hereof.
Every supplemental indenture so qualified or executed shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by the Company, bear a notation in form approved by the Company as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE X. COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in
accordance with the terms of such Securities and this Indenture.
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SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series, an
office or agency where Securities of that series may be presented or
surrendered for payment and an office or agency where Securities may be
surrendered for transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company initially appoints the Trustee, acting through its
Corporate Trust Office, as its agent for said purposes. The Company will
give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered
for any or all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee
of any such designation and any change in the location of any such office
or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities
of such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to 10:00 a.m. New York City time on each due date of the principal of
or interest on any Securities, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to
such principal and premium (if any) or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
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(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by the Company or
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be paid on
Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, the City of New York, notice that
such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the
end of each calendar year of the Company ending after the date hereof, an
Officers' Certificate executed by authorized officers at least one of whom
shall be the principal executive, financial or accounting officer of the
Company covering the preceding calendar year, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance, observance or fulfillment of or compliance with any of the
terms, provisions, covenants and conditions of this Indenture, and if the
Company shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge. For the purpose of
this Section 10.4, compliance shall be determined without regard to any
grace period or requirement of notice provided pursuant to the terms of
this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition as specified as contemplated by Section 3.1 with
respect to the Securities of any series, if before or after the time for
such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the
Company in respect of any such covenant or condition shall remain in full
force and effect.
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SECTION 10.6. Payment of the Trust's Costs and Expenses.
Since the Republic New York Trusts are being formed solely to
facilitate the investment in the Securities, the Company, as borrower,
hereby covenants to pay all debts and obligations (other than with respect
to the Trust Securities) and all costs and expenses of such Trusts
(including, but not limited to, all costs and expenses relating to the
organization of such Trusts, the fees and expenses of the Trustees and all
costs and expenses relating to the operation of such Trusts) and to pay any
and all taxes, duties, assessments or other governmental charges of
whatever nature (other than United States withholding taxes) imposed on
such Trusts by the United States, or any other taxing authority (such
payments of amounts in connection with taxes being herein referred to as
"Additional Sums"), so that the net amounts received and retained by such
Trusts and their respective Property Trustees after paying such expenses or
Additional Sums will be equal to the amounts such Trusts and Property
Trustees would have received had no such costs, expenses or taxes, duties,
assessments or other governmental charges been incurred by or imposed on
such Trusts. The foregoing obligations of the Company are for the benefit
of, and shall be enforceable by, any person to whom 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 Company hereunder directly against the
Company, and the Company hereby irrevocably waives any right or remedy to
require that any such Creditor take any action against any Trust or any
other person before proceeding against the Company. The Company also agrees
hereby to execute such additional agreements as may be necessary or
desirable to give full effect to the foregoing.
SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of a
series issued to a Republic New York Trust 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 shares of the Company's capital
stock, or (ii) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company
(including Other Debt) that rank pari passu with or junior in interest to
the Securities of such series or (iii) make any guarantee payments with
respect to any guarantee by the Company of debt securities of any
subsidiary of the Company (including Other Guarantees) if such guarantee
ranks pari passu with or junior in interest to the Securities (other than
(a) dividends or distributions in Common Stock of the Company, (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 Agreement, (d) purchases or
acquisitions of shares of the Company's Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plan or other contractual obligation of the Company (other than a
contractual obligation ranking pari passu with or junior in interest to
these Securities), (e) as a result of a reclassification of the Company's
capital stock or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's
capital stock, or (f) the purchase of fractional interests in shares of the
Company'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 any event of which the Company has
actual knowledge that (a) with the giving of notice or the lapse of time or
both, would constitute an Event of Default hereunder and (b) in respect of
which the Company shall not have taken reasonable steps to cure, (ii) the
Company shall be in default with respect to its payment of any obligations
under the related Republic New York Guarantee or (iii) the Company shall
have given notice of its election to begin an Extension Period as provided
herein and shall not have rescinded such notice, or such Extension Period,
or any extension thereof, shall be continuing.
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The Company also covenants with each Holder of Securities of a series
issued to a Republic New York Trust (i) to maintain directly or indirectly
100% ownership of the Common Securities of such Republic New York Trust;
provided, however, that any permitted successor of the Company hereunder
may succeed to the Company's ownership of such Common Securities, (ii) not
to voluntarily terminate, wind-up or liquidate such Republic New York
Trust, except (a) in connection with a distribution of the Securities of
such series to the holders of Capital Securities in liquidation of such
Republic New York Trust or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the related Trust Agreement
and (iii) to use its reasonable efforts, consistent with the terms and
provisions of such Trust Agreement, to cause such Republic New York Trust
to remain classified as a grantor trust and not an association taxable as a
corporation for United States Federal income tax purposes.
SECTION 10.8. Information Returns.
On or before December 15 of each year during which any Securities are
outstanding, the Company shall furnish to each Paying Agent such
information as may be reasonably requested by each Paying Agent in order
that such Paying Agent may prepare the information which it is required to
report for such year on Internal Revenue Service Forms 1096 and 1099. Such
information shall include the amount of original issue discount, if any,
includible in income for each $1,000 of principal amount at Stated Maturity
of outstanding Securities during such year.
ARTICLE XI. REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities (whether by operation of a sinking fund or
otherwise) as permitted or required by any form of Security issued pursuant
to this Indenture shall be made in accordance with such form of Security
and this Article; provided, however, that if any provision of any such form
of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set
forth in the form of Security for such series, each Security shall be
subject to partial redemption only in the amount of $1,000 or, in the case
of the Securities of a series issued to a Republic New York Trust, $1,000,
or integral multiples thereof.
SECTION 11.2. Election to Redeem, Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Company of any Securities of any particular series
and having the same terms, the Company shall, not less than 45 nor more
than 60 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee and the
Property Trustee of such date and of the principal amount of Securities of
that series to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in
the terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate and an Opinion of Counsel evidencing compliance with
such restriction. Any such notice given to the Trustee hereunder shall
include the information required by Section 11.4 hereof.
SECTION 11.3. Selection of Securities to be Redeemed
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to
be redeemed or unless such redemption affects only a single Security all as
designated to the Trustee by the Company), the particular Securities to be
redeemed shall
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be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided,
however, that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If less than
all the Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for partial redemption and the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Security which has
been or is to be redeemed. If the Company shall so direct, Securities
registered in the name of the Company, any Affiliate or any Subsidiary
thereof shall not be included in the Securities selected for redemption.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than the
sixtieth day, prior to the date fixed for redemption, to each Holder of
Securities to be redeemed, at the address of such Holder as it appears in
the Securities Register.
With respect to Securities of each series to be redeemed, each notice
of redemption shall state:
(a) the date fixed for redemption for Securities of such series;
(b) the redemption price at which Securities of such series are to be
redeemed;
(c) if less than all Outstanding Securities of such particular series
and having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of the
particular Securities to be redeemed;
(d) that on the date fixed for redemption, the redemption price at
which such Securities are to be redeemed will become due and payable upon
each such Security or portion thereof, and that interest thereon, if any,
shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered
for payment of the redemption price at which such Securities are to be
redeemed;
(f) that the redemption is for a sinking fund, if such is the case;
and
(g) such other provisions as may be required in respect of the terms
of a particular series of Securities.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
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conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or
any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in Section 11.4,
the Company will deposit with the Trustee or with one or more paying agents
an amount of money sufficient to redeem on the redemption date all the
Securities so called for redemption at the applicable redemption price.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section
11.4, the Securities or portion of Securities with respect to which such
notice has been given shall become due and payable on the date and at the
place or places stated in such notice at the applicable redemption price.
On presentation and surrender of such Securities at a place of payment in
said notice specified, the said securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable
redemption price.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or Securities of the
same series, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented and having the
same Original Issue Date, Stated Maturity and terms. If a Global Security
is so surrendered, such new Security will (subject to Section 3.6) also be
a new Global Security.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and premium, if any, on
such Security shall, until paid, bear interest from the Redemption Date at
the rate prescribed therefor in the Security.
SECTION 11.7. Company's Right of Redemption.
(a) Unless otherwise specified as contemplated by Section 3.1 with
respect to the Securities of a particular series and notwithstanding any
additional redemption rights that may be so specified, the Company may, at
its option, redeem the Securities of any series after their date of
issuance in whole at any time or in part from time to time, subject to the
provisions of this clause (a) and the other provisions of this Article XI.
Unless otherwise specified as contemplated by Section 3.1 with respect to
the Securities of a particular series, the redemption price for any
Security so redeemed pursuant to this clause (a) shall be equal to 100% of
the principal amount of such Securities plus any accrued and unpaid
interest, including any Additional Interest, to the date fixed for
redemption. The Company shall not redeem the Securities in part unless all
accrued and unpaid interest (including any Additional Interest) has been
paid in full on all Securities Outstanding for all interest periods
terminating on or prior to the date fixed for redemption.
(b) In the case of the Securities of a series issued to a Republic New
York Trust, except as otherwise specified as contemplated by Section 3.1,
if a Tax Event in respect of the Company or such Republic New York Trust
shall occur and be continuing, the Company may, at its option, redeem the
Securities of such series within 90 days of the occurrence of such Tax
Event, in whole but not in part,
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subject to the provisions of this clause (b) and the other provisions of
this Article XI. The redemption price for any Security so redeemed pursuant
to this clause (b) shall be equal to 100% of the principal amount of such
Securities then Outstanding plus accrued and unpaid interest, including any
Additional Interest, to the date fixed for redemption.
ARTICLE XII. EXCHANGE AND REGISTRATION RIGHTS
SECTION 12.1. Exchange.
(a) If specified as contemplated by Section 3.1 for Securities of any
series, the Company shall enter into a registration rights agreement with
the Initial Purchasers (the "Registration Rights Agreement") for the
benefit of the holders of any Capital Securities of any Republic New York
Trust which are not registered under the Securities Act of 1933, as amended
(the "Securities Act") providing that such Republic New York Trust use its
best efforts to exchange such Capital Securities for registered securities,
by means of an exchange offer registration statement (an "Exchange Offer
Registration Statement"), issued by such Republic New York Trust with terms
identical in all material respects to the terms of the Capital Securities
(the "Exchange Capital Securities").
(b) In the event that a Republic New York Trust is successful in
providing Exchange Capital Securities to the holders of Capital Securities
as described in clause (a) of this Section 12.1, the Company shall
contemporaneously exchange the Securities held by such Republic New York
Trust for new securities issued by the Company (the "Exchange Securities")
with terms identical in all material respects to the terms of the
Securities to such Capital Securities, and shall further contemporaneously
exchange the Guarantee then held by the Guarantee Trustee under the
Guarantee Agreement for a new guarantee of the Company (the "Exchange
Guarantee") with terms identical in all material respects to the terms of
the Guarantee.
SECTION 12.2. Registration.
If specified as contemplated by Section 3.1 for Securities of any
series, the Administrative Trustees of any Republic New York Trust on
behalf of such Republic New York Trust shall (a) file a registration
statement under the Securities Act covering resales of the Capital
Securities (the "Registration Statement"), (b) use their best efforts to
cause such Registration Statement to be declared effective under the
Securities Act, and (c) use their best efforts to cause such Registration
Statement to remain effective for as long as specified as contemplated by
Section 3.1 for Securities of such series. The Administrative Trustees
shall (x) promptly deliver to the holders and to the Delaware Trustee and
the Property Trustee written notice of their intent to file such
Registration Statement. All costs incurred in connection with the filing
and maintenance of such Registration Statement shall be borne by the
Company.
SECTION 12.3. Increase in Interest Rate.
If specified as contemplated by Section 3.1 for Securities of any
series, the Company may enter into an agreement providing that, in the
event that (i) an Exchange Offer Registration Statement or a Registration
Statement is not filed, (ii) such Exchange Offer Registration Statement or
Registration Statement does not become effective, or (iii) such Exchange
Offer Registration Statement or Registration Statement does not remain
effective within the time period or for as long as contemplated by the
applicable registration rights agreement, the Company shall pay to the
relevant Republic New York Trust, and such Republic New York Trust shall
pay to the holders of the Capital Securities, an amount,
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which may be either fixed or based on the duration and/or principal amount
of the Capital Securities affected thereby.
SECTION 12.4. Compliance With Law.
Any registration rights agreement entered into hereunder may provide
that any Holder of Capital Securities who is considered to be an affiliate
of the Company or the Republic New York Trust or any underwriter in
connection with the issuance and sale of Capital Securities be barred from
participation in the Exchange Offer Registration Statement or other
Registration Statement, in accordance with applicable law or regulation.
ARTICLE XIII. SINKING FUNDS
SECTION 13.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any sinking fund payment in excess of such
minimum amount which is permitted to be made by the terms of such
Securities of any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as
provided in Section 13.2. Each sinking fund payment shall be applied to the
redemption (or purchase by tender or otherwise) of Securities of any series
as provided for by the terms of such Securities.
SECTION 13.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Securities of a series in cash, the Company may at its
option, at any time no more than 16 months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the
Trustee Securities of such series (together with the unmatured Coupons, if
any, appertaining thereto) theretofore purchased or otherwise acquired by
the Company, except Securities of such series that have been redeemed
through the application of mandatory or optional sinking fund payments
pursuant to the terms of the Securities of such series, accompanied by a
Company Order instructing the Trustee to credit such obligations and
stating that the Securities of such series were originally issued by the
Company by way of bona fide sale or other negotiation for value; provided
that the Securities to be so credited have not been previously so credited.
The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 13.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash in the
currency in which the Securities of such series are payable (except as
provided pursuant to Section 3.1) and the portion thereof, if any, which is
to be
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satisfied by delivering and crediting Securities pursuant to Section 13.2
and will also deliver to the Trustee any Securities to be so delivered.
Such Certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred
to, if any, on or before the succeeding sinking fund payment date. In the
case of the failure of the Company to deliver such Certificate (or, as
required by this Indenture, the Securities and coupons, if any, specified
in such Certificate) by the due date therefor, the sinking fund payment due
on the succeeding sinking fund payment date for such series shall be paid
entirely in cash and shall be sufficient to redeem the principal amount of
the Securities of such series subject to a mandatory sinking fund payment
without the right to deliver or credit securities as provided in Section
13.2 and without the right to make the optional sinking fund payment with
respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made
with respect to the Securities of any particular series shall be applied by
the Trustee (or by the Company if the Company is acting as its own Paying
Agent) on the sinking fund payment date on which such payment is made (or,
if such payment is made before a sinking fund payment date, on the sinking
fund payment date immediately following the date of such payment) to the
redemption of Securities of such series at the redemption price specified
in such Securities with respect to the sinking fund. Any sinking fund
moneys not so applied or allocated by the Trustee (or by the Company if the
Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 10.3) for such series and together with such payment
(or such amount so segregated) shall be applied in accordance with the
provisions of this Section 13.3. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or
if the Company is acting as its own Paying Agent, segregated and held in
trust as provided in Section 10.3) on the last sinking fund payment date
with respect to Securities of such series and not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying
Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of
the Securities of such series at Maturity. The Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Section 11.6. On or before each sinking fund payment date,
the Company shall pay to the Trustee (or, if the Company is acting as its
own Paying Agent, the Company shall segregate and hold in trust as provided
in Section 10.3) in cash a sum in the currency in which Securities of such
series are payable (except as provided pursuant to Section 3.1) equal to
the principal, premium, if any, and any interest accrued to the redemption
date for Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section 13.3.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event
of Default occurring as a consequence of this paragraph) with respect to
the Securities of such series, except that if the notice of redemption
shall have been provided in accordance with the provisions hereof, the
Trustee (or the Company if the Company is then acting as its own Paying
Agent) shall redeem such Securities if cash sufficient for that purpose
shall be deposited with the Trustee (or segregated by the Company) for that
purpose in accordance with the terms of this Article XII. Except as
aforesaid, any moneys in the sinking fund for such series at the time when
any such default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such default
or Event of Default, be held as security for the payment of the Securities
and coupons, if any, of such series; provided, however, that in case such
default or Event of Default shall have been cured or waived herein, such
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moneys shall thereafter be applied on the next sinking fund payment date
for the Securities of such series on which such moneys may be applied
pursuant to the provisions of this Section 13.3.
ARTICLE XIV. SUBORDINATION OF SECURITIES
SECTION 14.1. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by
its acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article, the payment of the
principal of (and premium, if any) and interest (including any Additional
Interest) on each and all of the Securities are hereby expressly made
subordinate and junior in right of payment to the prior payment in full of
all amounts then due and payable in respect of all Senior Debt.
SECTION 14.2. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution, or other winding up of
the Company, voluntary or involuntary, whether or not involving insolvency
or bankruptcy proceedings, (c) any assignment by the Company for the
benefit of creditors or (d) any other marshaling of the assets of the
Company (each such event, if any, herein sometimes referred to as a
"Proceeding"), then the holders of Senior Debt shall be entitled to receive
payment in full of principal of (and premium, if any) and interest, if any,
on such Senior Debt, or provision shall be made for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, before the Holders of the Securities are entitled to receive
or retain any payment or distribution of any kind or character, whether in
cash, property or securities (including any payment or distribution which
may be payable or deliverable by reason of the payment of any other Debt of
the Company (including any series of the Securities) subordinated to the
payment of the Securities, such payment or distribution being hereinafter
referred to as a "Junior Subordinated Payment"), on account of principal of
(or premium, if any) or interest (including any Additional Interest) on the
Securities or on account of the purchase or other acquisition of Securities
by the Company or any Subsidiary and to that end the holders of Senior Debt
shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property
or securities, including any Junior Subordinated Payment, which may be
payable or deliverable in respect of the Securities in any such Proceeding;
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, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is
provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, and if such fact shall, at or
prior to the time of such payment or distribution, have been made known to
a Responsible Officer of the Trustee or, as the case may be, such Holder,
then and in such event such payment or distribution shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the
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payment of all Senior Debt remaining unpaid, to the extent necessary to pay
all Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which
securities are subordinated in right of payment to all then outstanding
Senior Debt to substantially the same extent as the Securities are so
subordinated as provided in this Article. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation
or dissolution of the Company following the sale of all or substantially
all of its properties and assets as an entirety to another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article VIII shall not be
deemed a Proceeding for the purposes of this Section if the Person formed
by such consolidation or into which the Company is merged or the Person
which acquires by sale such properties and assets as an entirety, as the
case may be, shall, as a part of such consolidation, merger, or sale comply
with the conditions set forth in Article VIII.
SECTION 14.3. Prior Payment to Senior Debt Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior
Debt outstanding at the time such Securities so become due and payable
shall first be entitled to receive payment in full of all amounts due on or
in respect of such Senior Debt (including any amounts due upon
acceleration), or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt, before the Holders of the Securities will be entitled to receive or
retain any payment or distribution of any kind or character, whether in
cash, property or securities (including any Junior Subordinated Payment) by
the Company on account of the principal of (or premium, if any) or interest
(including any Additional Interest) on the Securities or on account of the
purchase or other acquisition of Securities by the Company or any
Subsidiary; provided, however, that nothing in this Section shall prevent
the satisfaction of any sinking fund payment in accordance with this
Indenture or as otherwise specified as contemplated by Section 3.1 for the
Securities of any series by delivering and crediting pursuant to Section
13.2 or as otherwise specified as contemplated by Section 3.1 for the
Securities of any series Securities which have been acquired (upon
redemption or otherwise) prior to such declaration of acceleration;
provided, further, 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, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by
the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to a Responsible
Officer of the Trustee or, as the case may be, such Holder, then and in
such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.2 would be applicable.
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SECTION 14.4. No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default by the
Company in the payment of principal of (or premium, if any) or interest, if
any, on any Senior Debt, or in the event that any event of default with
respect to any Senior Debt shall have occurred and be continuing and shall
have resulted in such Senior Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or
waived or shall have ceased to exist and such acceleration shall have been
rescinded or annulled, or (b) in the event any judicial proceeding shall be
pending with respect to any such default in payment or such event or
default, then no direct or indirect payment or distribution of any kind or
character, whether in cash, property or securities (including any Junior
Subordinated Payment) shall be made or agreed to be made by the Company on
account of principal of (or premium, if any) or interest (including any
Additional Interest), if any, on the Securities or on account of any
redemption, repayment, retirement, purchase or other acquisition of any
Securities by the Company or any Subsidiary; provided, however, that
nothing in this Section shall prevent the satisfaction of any sinking fund
payment in accordance with this Indenture or as otherwise specified as
contemplated by Section 3.1 for the Securities of any series by delivering
and crediting pursuant to Section 13.2 or as otherwise specified as
contemplated by Section 3.1 for the Securities of any series Securities
which have been acquired (upon redemption or otherwise) prior to such
default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by
the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to a Responsible
Officer of the Trustee or, as the case may be, such Holder, then and in
such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.2 would be applicable.
SECTION 14.5. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except
during the pendency of any Proceeding referred to in Section 14.2 or under
the conditions described in Sections 14.3 and 14.4, from making payments at
any time of principal of (and premium, if any) or interest (including
Additional Interest) on the Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest (including
any Additional Interest) on the Securities or the retention of such payment
by the Holders, if, at the time of such payment by the Company or
application by the Trustee, as the case may be, it did not have knowledge
that such payment or application, as the case may be, would have been
prohibited by the provisions of this Article.
SECTION 14.6. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment of all Senior Debt to the extent required under
Sections 14.2 and 14.3 of this Indenture, or the provision for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, the Holders of the Securities shall be subrogated
to the extent of the payments or distributions made to the holders of such
Senior Debt pursuant to the provisions of this Article (equally and ratably
with the holders of all indebtedness of the Company which by its express
terms is subordinated to Senior Debt of the Company to substantially the
same extent as the Securities are subordinated to the Senior Debt and is
entitled to like rights of subrogation by reason of any
65
<PAGE>
payments or distributions made to holders of such Senior Debt) to the
rights of the holders of such Senior Debt to receive payments and
distributions of cash, property and securities applicable to the Senior
Debt until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation or
assignment, no payments or distributions to the holders of the Senior Debt
of any cash, property or securities to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article,
and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall,
as among the Company, its creditors other than holders of Senior Debt, and
the Holders of the Securities, be deemed to be a payment or distribution by
the Company to or on account of the Senior Debt.
SECTION 14.7. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Debt on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as between the Company and
the Holders of the Securities, the obligations of the Company, which are
absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest (including any Additional
Interest) on the Securities as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Company of the Holders of the Securities and creditors of the
Company other than their rights in relation to the holders of Senior Debt;
or (c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Debt to receive cash, property and securities otherwise
Payable or deliverable to the Trustee or such Holder.
SECTION 14.8. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination
provided in this Article and appoints the Trustee his or her
attorney-in-fact for any and all such purposes.
SECTION 14.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by
any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof that any such holder
may have or be otherwise charged with.
SECTION 14.10. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or from
any trustee, agent or representative therefor (whether or not the facts
contained in such notice are true); provided, however,
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<PAGE>
that if the Trustee shall not have received the notice provided for in this
Section at least two Business Days prior to the date upon which by the
terms hereof any monies may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium, if any)
or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the
same to the purpose for which they were received and shall not be affected
by any notice to the contrary which may be received by it within two
Business Days prior to such date.
SECTION 14.11. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Article VI, and
the Holders of the Securities shall be entitled to conclusively rely upon
any order or decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose
of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall
not be liable to any such holders if it shall in good faith mistakenly pay
over or distribute to Holders of Securities or to the Company or to any
other Person cash, property or securities to which any holders of Senior
Debt shall be entitled by virtue of this Article or otherwise.
SECTION 14.13. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may
at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
SECTION 14.14. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee.
SECTION 14.15. Certain Conversions or Exchanges Deemed Payment.
For purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be
deemed to constitute a payment or distribution on account of the principal
of (or premium, if any) or interest (including any Additional Interest) on
Securities or on account of the purchase or other acquisition of
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a
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Security shall be deemed to constitute payment on account of the principal
of such Security. For the purposes of this Section, the term "junior
securities" means (i) shares of any stock of any class of the Company and
(ii) securities of the Company which are subordinated in right of payment
to all Senior Debt which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a
greater extent than, the Securities are so subordinated as provided in this
Article.
******
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first written above.
REPUBLIC NEW YORK CORPORATION
[Seal]
By: /s/ Thomas F. Robards
Name: Thomas F. Robards
Title: Executive Vice President
BANKERS TRUST COMPANY,
as Trustee
[Seal]
By: /s/ Jenna Kaufman
Name: Jenna Kaufman
Title: Vice President
68
CERTIFICATE OF TRUST OF
REPUBLIC NEW YORK CAPITAL II
THIS CERTIFICATE OF TRUST of Republic New York Capital II (the "Trust"),
dated as of November 26, 1996, is being duly executed and filed by Bankers
Trust (Delaware), a Delaware banking corporation, as trustee, Thomas F.
Robards, an individual, as trustee and Stephen Saali, an individual, as
trustee to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is Republic New
York Capital II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
as follows: Bankers Trust (Delaware), 1001 Jefferson Street, Suite 550,
Wilmington, DE 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
4. Duration. The Trust created hereby shall terminate on December 3,
2050.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first written above.
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
trustee
By: /s/ James H. Stallkamp
------------------------------
Name: James H. Stallkamp
Title: President
THOMAS F. ROBARDS, not in his individual
capacity but solely as trustee
/s/ Thomas F. Robards
-------------------------------------
STEPHEN SAALI, not in his individual
capacity but solely as trustee
/s/ Stephen J. Saali
-----------------------------------------
DECLARATION OF TRUST
This DECLARATION OF TRUST, dated as of November 26, 1996, among (i)
Republic New York Corporation, a Maryland corporation, as "Depositor", (ii)
Bankers Trust (Delaware), a Delaware banking corporation, not in its
individual capacity but solely as trustee of the Trust (the "Delaware
Trustee), (iii) Thomas F. Robards, an individual employed by the Depositor,
not in his individual capacity but solely as an administrative trustee of
the trust, and (iv) Stephen Saali, an individual employed by the Depositor,
not in his individual capacity but solely as an administrative trustee of
the trust (each of such trustees in (ii), (iii) and (iv) a "Trustee" and
collectively, "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as Republic New York
Capital II (the "Trust"), in which name the Trustees, or the Depositor to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Depositor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Depositor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq.
(the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees hereby are authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of
State in accordance with the provisions of the Business Trust Act.
3. The Depositor, the Trustees and other parties to become additional
trustees will enter into an amended and restated Declaration of Trust,
satisfactory to each such party, to provide for the contemplated operation
of the Trust created hereby and the issuance of the Capital Securities and
Common Securities referred to therein. Prior to the execution and delivery
of such amended and restated Declaration of Trust, the Trustees shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as may be necessary to obtain prior to such execution and delivery
any licenses, consents or approvals required by applicable law or
otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, in each case on behalf of the
Trust, (i) to prepare an Offering Circular, (ii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers
and documents as the Depositor, on behalf of the Trust, may deem necessary
or desirable to register the Capital Securities under the securities or
"Blue Sky" laws; (iii) to execute on behalf of the Trust such pricing
agreements with one or more underwriters relating to the offering of the
Capital Securities as the Depositor, on behalf of the Trust, may deem
necessary or desirable. In the event that any filing referred to in clause
(ii) above is required by the rules and regulations of the state securities
or "Blue Sky" laws, to be executed on behalf of the Trust by a Trustee, the
Depositor and any trustee appointed pursuant to Section 7 hereof are hereby
authorized to join in any such filing and to execute on behalf of the Trust
any and all of the foregoing it being understood that Bankers Trust
(Delaware) in its capacity as Trustee of the Trust shall not be
1
<PAGE>
required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of state
securities or "Blue Sky" laws.
5. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such 1933 Act Registration Statement (including the
prospectus and the exhibits contained therein), relating to the
registration under the Securities Act of 1933, as amended, of the Capital
Securities of the Trust and certain other securities and (b) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement") (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under Section 12 of the
Securities Exchange Act of 1934, as amended; (ii) to file with one or more
national securities exchanges (each, an "Exchange") or the National
Association of Securities Dealers ("NASD") and execute on behalf of the
Trust a listing application or applications and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Capital Securities to be listed on any
such Exchange or the NASD's Nasdaq National Market ("NASDAQ"); (iii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents as the Depositor, on behalf of the
Trust, may deem necessary or desirable to register the Capital Securities
under the securities or "Blue Sky" laws; (iv) to execute on behalf of the
Trust such underwriting agreements with one or more underwriters relating
to the offering of the Capital Securities as the Depositor, on behalf of
the Trust, may deem necessary or desirable. In the event that any filing
referred to in clauses (i), (ii) and (iii) above is required by the rules
and regulations of the Commission, any Exchange, the NASD or state
securities or "Blue Sky" laws, to be executed on behalf of the Trust by a
Trustee, the Depositor and any trustee appointed pursuant to Section 7
hereof are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing it being understood that
Bankers Trust (Delaware) in its capacity as Trustee of the Trust shall not
be required to join in any such filing or execute on behalf of the Trust
any such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or "Blue Sky" laws.
6. This Declaration of Trust may be executed in one or more
counterparts.
7. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to
time by a written instrument signed by the Depositor which may increase or
decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any Trustee at any time. The Trustee may resign upon thirty
days' prior notice to the Depositor.
8. The recitals contained in this Declaration of Trust shall be taken
as statements of the Depositor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any
2
<PAGE>
part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration of Trust.
9. (a) The Delaware Trustee shall not be liable, responsible or
accountable for damages or otherwise to the Trust, the Depositor, the other
Trustees or any holder of the Capital Securities for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by the
Delaware Trustee in good faith on behalf of the Trust and in a manner the
Delaware Trustee reasonably believed to be within the scope of authority
conferred on the Delaware Trustee by this Declaration of Trust by law,
except that the Delaware Trustee shall be liable for any such loss, damage
or claim incurred by reason of the Delaware Trustee's gross negligence or
willful misconduct with respect to such acts or omissions.
(b) The Delaware Trustee shall be fully protected in relying in
good faith upon this Declaration of Trust, the records of the Trust and
upon such information, opinions, reports or statements presented to the
Trust by any person as to matters the Delaware Trustee reasonably believes
are within such other person's professional or expert competence and who
has been selected with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Capital Securities might properly be paid.
10. The Depositor agrees, to the fullest extent permitted by
applicable law:
(a) to indemnify and hold harmless the Delaware Trustee, or any of
its officers, directors, shareholders, employees, representatives or
agents, from and against any loss, damage, liability, tax penalty, expense
or claim of any kind or nature whatsoever incurred by reason of the
creation, operation or termination of the Trust or any act or omission
performed or omitted by the Delaware Trustee in good faith on behalf of the
Trust in a manner reasonably believed to be within the scope of authority
conferred on the Delaware Trustee by this Declaration of Trust, except that
the Delaware Trustee shall not be entitled to be indemnified in respect of
any loss, damage or claim incurred by reason of its gross negligence or
willful misconduct with respect to such acts or omissions; and
(b) to advance expenses (including the fees and expenses of counsel)
incurred by the Delaware Trustee in defending any claim, demand, action,
suit or proceeding from time to time, prior to the final disposition of
such claim, demand, action, suit or proceeding.
11. The provisions of Section 10 shall survive the termination of this
Declaration of Trust or the earlier resignation or removal of the Delaware
Trustee.
12. The Trust created hereby shall terminate on December 3, 2050.
13. The Trust may terminate without issuing any Capital Securities at
the sole election of the Depositor.
14. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles). The
3
<PAGE>
provisions of Sections 3540 and 3561 of Title 12 of the Delaware Code shall
not apply to the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first written above.
REPUBLIC NEW YORK CORPORATION,
as Depositor
By: /s/ William F. Rosenblum, Jr.
--------------------------------
Name: William F. Rosenblum, Jr.
Title: Senior Vice President,
Deputy General Counsel
and Corporate Secretary
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as Trustee
By: /s/ James H. Stallkamp
------------------------------
Name: James H. Stallkamp
Title: President
THOMAS F. ROBARDS,
not in his individual capacity but solely as
Administrative Trustee
/s/ Thomas F. Robards
-----------------------------------
STEPHEN SAALI,
not in his individual capacity but solely as
Administrative Trustee
/s/ Stephen Saali
------------------------------------
4
EXECUTION COPY
AMENDED AND RESTATED
DECLARATION OF TRUST
among
REPUBLIC NEW YORK CORPORATION, as Depositor,
BANKERS TRUST COMPANY,
as Property Trustee,
BANKERS TRUST (DELAWARE),
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of December 4, 1996
REPUBLIC NEW YORK CAPITAL II
<PAGE>
REPUBLIC NEW YORK CAPITAL II
Certain Sections of this Declaration of Trust relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Declaration of Trust
Act Section Section
(ss.) 310 (a)(1) . . . . . . . . . . . . . . . . 8.7
(a)(2) . . . . . . . . . . . . . . . . 8.7
(a)(3) . . . . . . . . . . . . . . . . 8.9
(a)(4) . . . . . . . . . . . . . . . . 2.7(a)(ii)
(b) . . . . . . . . . . . . . . . . 8.8
(ss.) 311 (a) . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . 8.13
(ss.) 312 (a) . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . 5.7
(ss.) 313 (a) . . . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . 10.8
(d) . . . . . . . . . . . . . . . . 8.14(c)
(ss.) 314 (a) . . . . . . . . . . . . . . . . 8.15
(b) . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 8.16
(c)(2) . . . . . . . . . . . . . . . . 8.16
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . 1.1, 8.16
(ss.) 315 (a) . . . . . . . . . . . . . . . . 8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . . . . 8.2, 10.8
(c) . . . . . . . . . . . . . . . . 8.1(a)
(d) . . . . . . . . . . . . . . . . 8.1, 8.3
(e) . . . . . . . . . . . . . . . . Not Applicable
(ss.) 316 (a) . . . . . . . . . . . . . . . . Not Applicable
(a)(l)(A) . . . . . . . . . . . . . . . . Not Applicable
(a)(l)(B) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 5.14
(c) . . . . . . . . . . . . . . . . 6.7
(ss.) 317 (a)(1) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 5.9
(ss.) 318 (a) . . . . . . . . . . . . . . . . 10.10
Note This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Declaration of Trust.
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TABLE OF CONTENTS
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ARTICLE I. DEFINED TERMS
SECTION 1.1. Definitions. ....................................................................... 1
ARTICLE II. ESTABLISHMENT OF THE TRUSTS
SECTION 2.1. Name................................................................................ 9
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business ........................ 9
SECTION 2.3. Initial Contribution of Trust Property, Organizational Expenses..................... 9
SECTION 2.4. Issuance of Capital Securities...................................................... 9
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of
Junior Subordinated Debt Securities................................................. 10
SECTION 2.6. Declaration of Trust................................................................ 10
SECTION 2.7. Authorization to Enter into Certain Transactions.................................... 10
SECTION 2.8. Assets of Trust..................................................................... 14
SECTION 2.9. Title to Trust Property............................................................. 14
ARTICLE III. PAYMENT ACCOUNT
SECTION 3. 1. Payment Account..................................................................... 14
ARTICLE IV. DISTRIBUTIONS; REDEMPTION.............................................................. 15
SECTION 4.1. Distributions....................................................................... 15
SECTION 4.2. Redemption.......................................................................... 16
SECTION 4.3. Subordination of Common Securities.................................................. 18
SECTION 4.4. Payment Procedures.................................................................. 18
SECTION 4.5. Tax Returns and Reports............................................................. 19
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust......................................... 19
SECTION 4.7. Payments under Indenture............................................................ 19
ARTICLE V. TRUST SECURITIES CERTIFICATES........................................................... 19
SECTION 5.1. Initial Ownership................................................................... 19
SECTION 5.2. Trust Securities Certificates....................................................... 19
SECTION 5.3. Execution and Delivery of Trust Securities Certificates............................. 20
SECTION 5.4. Restrictions on Transfer; Registration of Transfer and
Exchange of Capital Securities Certificates......................................... 20
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.................. 21
SECTION 5.6. Persons Deemed Security Holders..................................................... 21
SECTION 5.7. Access to List of Securityholders' Names and Addresses.............................. 22
SECTION 5.8. Maintenance of Office or Agency; Transfer Agent..................................... 22
SECTION 5.9. Appointment of Paying Agent......................................................... 22
SECTION 5.10. Ownership of Common Securities by Depositor......................................... 23
SECTION 5.11. Book-Entry Capital Securities Certificates; Common Securities Certificates.......... 23
SECTION 5.12. Notices to Clearing Agency.......................................................... 24
SECTION 5.13. Definitive Capital Securities Certificates.......................................... 24
SECTION 5.14. Rights of Securityholders........................................................... 24
ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING ............................................ 26
SECTION 6.1. Limitations on Capital Securityholders' Voting Rights............................... 26
SECTION 6.2. Notice of Meetings.................................................................. 27
SECTION 6.3. Meetings of Capital Securityholders................................................. 27
SECTION 6.4. Voting Rights....................................................................... 28
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SECTION 6.5. Proxies, etc. ...................................................................... 28
SECTION 6.6. Securityholder Action by Written Consent............................................ 28
SECTION 6.7. Record Date for Voting and Other Purposes........................................... 28
SECTION 6.8. Acts of Capital Securityholders..................................................... 28
SECTION 6.9. Inspection of Records............................................................... 29
ARTICLE VII. REPRESENTATIONS AND WARRANTIES ....................................................... 30
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee............................................................ 30
SECTION 7.2. Representations and Warranties of Depositor......................................... 31
ARTICLE VIII. THE TRUSTEES ........................................................................ 31
SECTION 8.1. Certain Duties and Responsibilities................................................. 31
SECTION 8.2. Certain Notices..................................................................... 32
SECTION 8.3. Certain Rights of Property Trustee.................................................. 33
SECTION 8.4. Not responsible for Recitals........................................................ 35
SECTION 8.5. May Hold Securities................................................................. 35
SECTION 8.6. Compensation, Indemnity; Fees....................................................... 35
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees........................ 36
SECTION 8.8. Conflicting Interests............................................................... 37
SECTION 8.9. Co-Trustees and Separate Property Trustee........................................... 37
SECTION 8.10. Resignation and Removal; Appointment of Successor................................... 38
SECTION 8.11. Acceptance of Appointment by Successor.............................................. 39
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business......................... 40
SECTION 8.13. Preferential Collection of Claims Against Depositor or Trust........................ 40
SECTION 8.14. Reports by Property Trustee......................................................... 41
SECTION 8.15. Reports to the Property Trustee..................................................... 41
SECTION 8.16. Evidence of Compliance with Conditions Precedent.................................... 41
SECTION 8.17. Number of Trustees.................................................................. 42
SECTION 8.18. Delegation of Power................................................................. 42
ARTICLE IX. TERMINATTON, LIQUIDATION AND MERGER................................................... 42
SECTION 9.1. Termination Upon Expiration Date.................................................... 42
SECTION 9.2. Early Termination................................................................... 43
SECTION 9.3. Termination. ....................................................................... 43
SECTION 9.4. Liquidation......................................................................... 43
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust................. 45
ARTICLE X. MISCELLANEOUS PROVISIONS............................................................... 46
SECTION 10.1. Limitation of Rights of Security Holders............................................ 46
SECTION 10.2. Liability of the Common Securityholder.............................................. 46
SECTION 10.3. Amendment........................................................................... 46
SECTION 10.4. Separability........................................................................ 47
SECTION 10.5. Governing Law....................................................................... 47
SECTION 10.6. Payments Due on Non-Business Day.................................................... 47
SECTION 10.7. Successors.......................................................................... 48
SECTION 10.8. Headings............................................................................ 48
SECTION 10.9. Reports, Notices and Demands. ...................................................... 48
SECTION 10.10 Agreement Not to Petition........................................................... 48
SECTION 10.11 Trust Indenture Act, Conflict with Trust Indenture Act.............................. 49
SECTION 10.12 Acceptance of Terms of Declaration of Trust, Guarantee and Indenture................ 49
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AGREEMENT
Amended and Restated Declaration of Trust, dated as of December 4,
1996, among (i) Republic New York Corporation, a Maryland corporation
(including any successors or assigns, the "Depositor"), (ii) Bankers Trust
Company, a New York banking corporation, as property trustee, (in such
capacity, the "Property Trustee" and, in its separate corporate capacity
and not in its capacity as Property Trustee, the "Bank"), (iii) Bankers
Trust (Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"), (iv) Thomas F. Robards, an individual, and Stephen
Saali, an individual, each of whose address is c/o Republic New York
Corporation (each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and
the Administrative Trustees are referred to collectively herein as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Delaware Trustee and the
Administrative Trustees have heretofore duly declared and established a
business trust pursuant to the Delaware Business Trust Act by the entering
into a certain Declaration of Trust, dated as of November 26, 1996 (the
"Original Declaration of Trust"), and by the execution and filing by the
Delaware Trustee and the Administrative Trustees with the Secretary of
State of the State of Delaware of the Certificate of Trust, filed on
November 26, 1996 (the "Certificate of Trust"); and attached as Exhibit A;
and
WHEREAS, the Depositor, the Delaware Trustee and the
Administrative Trustees desire to amend and restate the Original
Declaration of Trust in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust
to the Depositor, (ii) the issuance and sale of the 7.53% Capital
Securities (the "Initial Capital Securities") by the Trust pursuant to the
Purchase Agreement, (iii) the issuance pursuant to a registered exchange
for the Initial Capital Securities of 7.53% Capital Securities (the
"Exchange Capital Securities") (each of the Initial Capital Securities and
the Exchange Capital Securities hereinafter referred to as the "Capital
Securities"), (iv) the acquisition by the Trust from the Depositor of all
of the right, title and interest in the Junior Subordinated Debt Securities
and (v) the appointment of Bankers Trust Company, a New York banking
corporation (in such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the
"Bank");
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of the other
parties and for the benefit of the Securityholders, hereby amends and
restates the Original Declaration of Trust in its entirety and agrees as
follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Declaration of Trust, except as otherwise
expressly provided or unless the context otherwise requires:
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(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of
this Declaration of Trust;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration of Trust as a whole and not to any
particular Article, Section or other subdivision; and
(e) all references to the date the Capital Securities were originally
issued shall refer to the date the Initial Capital Securities were
originally issued.
"Act" has the meaning specified in Section 6.8.
"Additional Distribution" has the meaning specified in Section 4.1(c).
"Administrative Trustee" means each of Thomas F. Robards and Stephen
Saali, solely in such Person's capacity as Administrative Trustee of the
Trust continued hereunder and not in such Person's individual capacity, or
such Administrative Trustee's successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"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. 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.
"Bank" has the meaning specified in the preamble to this Declaration of
Trust.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction
in the premises judging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of such
Person under any applicable federal or State bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable federal or State bankruptcy,
insolvency, reorganization or other similar law, or the consent by it
to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar
official) of such Person or of any substantial part of its property or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due and its willingness to be
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adjudicated a bankrupt, or the taking of corporate action by such
Person in furtherance of any such action.
"Board Resolution " means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the
Board of Directors or officers of the Depositor to which authority to act
on behalf of the Board of Directors has been delegated, and to be in full
force and effect on the date of such certification, and delivered to the
Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) 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 (c) a day on which
the Property Trustee's Corporate Trust Office or the Corporate Trust Office
of the Debenture Trustee is closed for business.
"Capital Securities" means each of the Initial Capital Securities and
the Exchange Capital Securities, treated together as a single class of
securities, each representing an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $1,000 per Capital
Security and having the rights provided therefor in this Declaration of
Trust, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Capital Securities Certificate " means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as
Exhibit B.
"Capital Securityholder" means a Person in whose name a Capital Security
or Capital Securities is registered in the Securities Register; and any
such Person shall be deemed to be a beneficial owner within the meaning of
the Delaware Business Trust Act.
"Certificate of Trust" has the meaning specified in the preamble to
this Declaration of Trust.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" has the meaning specified in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Securities" means the 7.53% Common Securities, each representing
an undivided beneficial interest in the assets of the Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in
this Declaration of Trust, including the right to receive Distributions and
a Liquidation Distribution as provided herein.
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"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in New York City which at the time of the execution of this
Declaration of Trust is located at Four Albany Street, New York, New York
10006; Attention: Corporate Trust and Agency Group - Corporate Market
Services.
"Declaration of Trust" means this Amended and Restated Declaration of
Trust, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto,
including, for all purposes of this Amended and Restated Declaration of
Trust, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Amended and Restated Declaration of Trust and any
modification, amendment or supplement of either, respectively.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York banking
corporation and any successor.
"Definitive Capital Securities Certificate" means Capital Securities
Certificates issued in certificated, fully registered form as provided in
Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss.ss. 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Declaration of Trust solely in its
capacity as Delaware Trustee of the Trust continued hereunder and not in
its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (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):
(a) the occurrence of a Debenture Event of Default; or
(b) 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
(c) default by the Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
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(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Declaration of Trust (other than a covenant or warranty, a default in
the performance or breach of which is addressed in clause (b) or (c)
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 Trustee or 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"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 60 days thereof.
"Expiration Date" has the meaning specified in Section 9.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve System.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and Bankers Trust Company, as trustee, contemporaneously with the
execution and delivery of this Declaration of Trust, for the benefit of the
holders of the Trust Securities, as amended from time to time.
"Global Capital Securities" means a beneficial interest in the Capital
Securities, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Global Capital Securities Certificate" means a certificate evidencing
ownership of Global Capital Securities, substantially in the form attached
as Exhibit B.
"Indenture" means the Indenture, dated as of November 27, 1996, between
the Depositor and the Debenture Trustee, as trustee, (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debt Securities.
"Junior Subordinated Debt Securities" means the aggregate principal
amount of the Depositor's 7.53% Junior Subordinated Debt Securities due
2026, issued pursuant to the Indenture.
"Junior Subordinated Debt Securities Redemption Date" means, with
respect to any Junior Subordinated Debt Securities to be redeemed under the
Indenture, the date fixed for redemption under the Indenture.
"Letter of Representations" means the agreement among the Trust, the
Property Trustee and The Depository Trust Company ("DTC"), as the initial
Clearing Agency, dated as of the Closing Date.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust 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 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 such Trust Securities, and (b) with respect
to a
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distribution of Junior Subordinated Debt Securities to Holders of Trust
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 Trust Securities of the Holder to whom such
Junior Subordinated Debt Securities are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated Debt
Securities are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust pursuant to
Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means 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 the Depositor, and delivered to
the appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 8.16 shall be the principal
executive, financial or accounting officer of the Depositor. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Declaration of Trust 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 such 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 such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall and which opinion shall be
reasonably acceptable to the Property Trustee.
"Original Declaration of Trust" has the meaning specified in the
preamble to this Declaration of Trust.
"Outstanding", with respect to Capital Securities, means, as of the date
of determination, all Capital Securities theretofore executed and delivered
under this Declaration of Trust, except:
(a) Capital Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
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(b) Capital Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Capital
Securities, provided that if such Capital Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Declaration of Trust; and
(c) Capital Securities which have been paid or in exchange for or
in lieu of which other Capital Securities have been executed and
delivered pursuant to Sections 5.2, 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Capital Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Capital Securities that a
Responsible Officer of such Trustee actually knows to be so owned shall be
so disregarded and (b) the foregoing shall not apply at any time when all
of the outstanding Capital Securities are owned by the Depositor, one or
more of the Trustees and/or any such Affiliate. Capital Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Capital Securities and that
the pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Global
Capital Security as reflected in the records of the Clearing Agency or, if
a Clearing Agency Participant is not the Owner, then as reflected in the
records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing
Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account " means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid
in respect of the Junior Subordinated Debt Securities will be held and from
which the Property Trustee shall make payments to the Securityholders in
accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Property Trustee" means the commercial bank or trust company identified
as the "Property Trustee" in the preamble to this Declaration of Trust
solely in its capacity as Property Trustee of the Trust continued hereunder
and not in its individual capacity, or its successor in interest in such
capacity, or any successor property trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of November
26, 1996, among the Trust, the Depositor and Deutsche Morgan Grenfell Inc.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this
Declaration of Trust; provided, however, that each Junior
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Subordinated Debt Securities Redemption Date and the stated maturity of the
Junior Subordinated Debt Securities shall be a Redemption Date for a Like
Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the
premium, if any, paid by the Depositor upon the concurrent redemption of a
Like Amount of Junior Subordinated Debt Securities, allocated on a pro rata
basis (based on Liquidation Amounts) among the Trust Securities.
"Registration Agreement" means the Registration Agreement dated as of
December 4, 1996, among the Trust, the Depositor and Deutsche Morgan
Grenfell Inc.
"Registration Exchange Offer" has the meaning specified in the
Registration Agreement.
"Registration Statement" has the meaning specified in the Registration
Agreement.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" means, when used with respect to the Property
Trustee, 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 to the Property Trustee
customarily performing functions similar to those performed by any of the
above designated officers and having direct responsibility for the
administration for this Declaration of Trust, 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.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any
such Person shall be deemed to be a beneficial owner within the meaning of
the Delaware Business Trust Act; provided, however, that in determining
whether the Holders of the requisite amount of Capital Securities have
voted on any matter provided for in this Declaration of Trust, then for the
purpose of any such determination, so long as Definitive Capital Securities
Certificates have not been issued, the term Securityholders or Holders as
used herein shall refer to the Owners.
"Stated Maturity" has the meaning specified in Section 1.1 of the Indenture.
"Tax Event" has the meaning specified in Section 1.1 of the Indenture.
"Transfer Agent" means the Bank as set forth in the preamble to this
Declaration of Trust.
"Trust" means Republic New York Capital II.
"Trust Indenture Act" has the meaning specified in Section 1.1 of the
Indenture.
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"Trust Property" means (a) the Junior Subordinated Debt Securities, (b) the
rights of the Property Trustee under the Guarantee, (c) any cash on deposit
in, or owing to, the Payment Account and (d) all proceeds and rights in
respect of the foregoing.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the Capital
Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name.
The Trust continued hereby shall be known as "Republic New York Capital
II", as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and
the other Trustees, in which name the Trustees may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of
the Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is Bankers
Trust (Delaware), 1001 Jefferson Street, Suite 550, Wilmington, DE 19801,
Attention: Ms. Lisa Wilkins, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the
Trust is in care of Republic New York Corporation, 452 Fifth Avenue, New
York, NY 10018; Attention: Office of the Secretary.
SECTION 2.3. Initial Contribution of Trust Property, Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with this Declaration of Trust of the sum of $10, which
constitutes the initial Trust Property. The Depositor, as borrower, shall
pay all organizational expenses of the Trust as they arise or shall, upon
request of any Trustee, promptly reimburse such Trustee for any such
expenses paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Capital Securities.
The Capital Securities to be issued will be limited to $200,000,000
aggregate Liquidation Amount outstanding at any one time.
On November 26, 1996, the Depositor and the Administrative Trustees, on
behalf of the Trust, and pursuant to the Original Declaration of Trust, and
Deutsche Morgan Grenfell Inc. executed and delivered the Purchase
Agreement. Contemporaneously with the execution and delivery of this
Declaration of Trust, an Administrative Trustee, on behalf of the Trust,
shall execute or cause to be executed in
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accordance with Section 5.2 and delivered to Deutsche Morgan Grenfell Inc.
a Global Capital Securities Certificate in book-entry form, registered in
the name of the nominee of the initial Clearing Agency, in an aggregate
amount of Capital Securities having an aggregate Liquidation Amount of
$200,000,000 against receipt of the aggregate purchase price of such
Capital Securities equal to 100% of the Liquidation Amount multiplied by
the number of Capital Securities being purchased which amount the
Administrative Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Junior Subordinated Debt Securities.
Contemporaneously with the execution and delivery of this Declaration of
Trust, an Administrative Trustee, on behalf of the Trust, shall execute or
cause to be executed in accordance with Section 5.2 and delivered to the
Depositor Common Securities Certificates, registered in the name of the
Depositor, in an aggregate amount of 6,186 Common Securities having an
aggregate Liquidation Amount of $6,186,000 against payment by the Depositor
of $6,186,000 minus the amount previously contributed pursuant to Section
2.3 hereof which amount the Administrative Trustees shall promptly deliver
to the Property Trustee. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Junior Subordinated Debt Securities, registered in the name of
the Trust and having an aggregate principal amount equal to $206,186,000,
and, in satisfaction of the purchase price for such Junior Subordinated
Debt Securities, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $206,186,000.
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are to (a) issue and
sell Trust Securities, (b) use the proceeds from the sale of Trust
Securities to acquire the Junior Subordinated Debt Securities, (c) receive
payments to be made with respect to the Junior Subordinated Debt
Securities, and (d) engaging in only those other activities necessary,
advisable or incidental thereto such as registering the transfer of the
Capital Securities and exchanging the Junior Subordinated Debt Securities
for Exchange Junior Subordinated Debt Securities pursuant to the
Registration Agreement. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and duties to the
extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property
in trust upon and subject to the conditions set forth herein for the
benefit of the Trust and the Securityholders. The Administrative Trustees
shall have all rights, powers and duties set forth herein and in accordance
with applicable law with respect to accomplishing the purposes of the
Trust. The Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities,
of the Property Trustee or the Administrative Trustees set forth herein.
The Delaware Trustee shall be one of the Trustees of the Trust for the sole
and limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Declaration of Trust. Subject to the
limitations set forth in paragraph (b) of this Section and in accordance
with the following provisions (i) and (ii), the Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this
Declaration of Trust, and to perform all acts in furtherance thereof,
including without limitation, the following:
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(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with
respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Purchase
Agreement, the Registration Agreement, the Letter of
Representations and such other agreements as may be
necessary or desirable in connection with the purposes and
function of the Trust;
(C) assisting in the registration of the Capital
Securities under the Securities Act of 1933, as amended and
under state securities or blue sky laws, and the
qualification of this Declaration of Trust as a trust
indenture under the Trust Indenture Act;
(D) assisting in the listing, if any, of the Capital
Securities upon such securities exchange or exchanges as
shall be determined by the Depositor and the registration of
the Capital Securities under the Securities Exchange Act of
1934, as amended, (the "Exchange Act"), and the preparation
and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust
Securities and the Junior Subordinated Debt Securities to
the Securityholders in accordance with this Declaration of
Trust;
(F) the appointment of a Paying Agent, Transfer Agent
and Securities Registrar in accordance with this Declaration
of Trust;
(G) registering transfer of the Trust Securities in
accordance with this Declaration of Trust;
(H) to the extent provided in this Declaration of
Trust, the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of
the State of Delaware;
(I) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act to execute on behalf of the Trust
(either acting alone or together with any or all of the
Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant
to this Declaration of Trust; and
(J) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Declaration of Trust for the benefit of the Securityholders
(without consideration of the effect of any such action on
any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect
to the following matters:
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(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debt
Securities;
(C) the collection of interest, principal and any other
payments made in respect of the Junior Subordinated Debt
Securities in the Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Junior Subordinated Debt
Securities;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Junior
Subordinated Debt Securities to the Securityholders in
accordance with this Declaration of Trust;
(G) the distribution of the Trust Property in
accordance with the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of
Trust, the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of
the State of Delaware;
(I) after an Event of Default the taking of any action
incidental to the foregoing as the Property Trustee may from
time to time determine is necessary or advisable to give
effect to the terms of this Declaration of Trust and protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder); and
(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Declaration of Trust remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transaction except as expressly provided herein
or contemplated hereby. In particular, the Trustees shall not (i) acquire
any investments or engage in any activities not authorized by this
Declaration of Trust, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Securityholders, except as expressly
provided herein, (iii) intentionally take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States
federal income tax purposes, (iv) incur any indebtedness for borrowed money
or issue any other debt, (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property, (vi) invest
any proceeds received by the Trust from holding the Junior Subordinated
Debt Securities, but shall distribute all such proceeds to Holders of Trust
Securities pursuant to the terms of this Declaration of Trust and of the
Trust Securities, (vii) acquire any assets other than the Trust Property,
(viii) possess any power or otherwise act in such a way as to vary the
Trust Property, (ix) possess any power or otherwise act in such a way as to
vary the terms of the Trust Securities in any way whatsoever (except to the
extent expressly authorized in this Declaration of Trust or by the terms of
the Trust Securities), (x) issue any
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securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Trust Securities, or (xi) other than
as provided in this Declaration of Trust or by the terms of the Trust
Securities, (A) direct the time, method and place of exercising any trust
or power conferred upon the Debenture Trustee with respect to the Junior
Subordinated Debt Securities, (B) waive any past default that is waivable
under the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all Junior Subordinated Debt Securities
shall be due and payable, or (D) consent to any amendment, modification, or
termination of the Indenture or the Junior Subordinated Debt Securities
where such consent shall be required unless the Trust shall have received
an Opinion of Counsel to the effect that such amendment, modification or
termination will not cause more than an insubstantial risk that the Trust
will be deemed an Investment Company required to be registered under the
Investment Company Act,. the Trust will not be classified as a grantor
trust for United States federal income tax purposes or the Junior
Subordinated Debt Securities will not be classified as indebtedness for
such purposes. The Administrative Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in
their capacity as Securityholders.
(c) In connection with the issue and sale of the Trust Securities,
the Depositor shall have the right and responsibility to assist the Trust
with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the
date of this Declaration of Trust are hereby ratified and confirmed in all
respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a
registration statement on the appropriate form in relation to the
Trust Securities, including any amendments thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of
the Trust Securities and the determination of any and all such
acts, other than actions which must be taken by or on behalf of
the Trust, and the advice to the Trustees of actions they must
take on behalf of the Trust, and the preparation for execution and
filing of any documents to be executed and filed by the Trust or
on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) the preparation for filing by the Trust and
execution on behalf of the Trust of an application to the New York
Stock Exchange or any other national stock exchange or the NASDAQ
National Market for listing upon notice of issuance of any Trust
Securities;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a
registration statement on Form 8-A relating to the registration of
the Trust Securities under Section 12(b) or 12(g) of the Exchange
Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Purchase Agreement providing for the sale of the
Trust Securities; and
(vi) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
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(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not (i) be
deemed to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended, or (ii) fail to be classified
as a grantor trust for United States federal income tax purposes and so
that the Junior Subordinated Debt Securities will be treated as
indebtedness of the Depositor for United States federal income tax
purposes. In this connection, the Depositor and the Administrative Trustees
are authorized to take any action, not inconsistent with applicable law,
the Certificate of Trust or this Declaration of Trust, that each of the
Depositor and the Administrative Trustees determines in their discretion to
be necessary or desirable for such purposes, as long as such action does
not adversely affect in any material respect the interests of the holders
of the Trust Securities.
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist solely of the Trust
Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in
the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Securityholders in accordance with this Declaration of Trust.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits in
and withdrawals from the Payment Account in accordance with this
Declaration of Trust. All moneys and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee
in the Payment Account for the exclusive benefit of the Securityholders and
for distribution as herein provided, including (and subject to) any
priority of payments provided for herein or by applicable law.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Junior Subordinated Debt
Securities. Amounts held in the Payment Account shall not be invested by
the Property Trustee pending distribution thereof.
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ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative and
will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accrue from December 4,
1996, and, except in the event (and to the extent) that the Depositor
exercises its right to defer the payment of interest on the Junior
Subordinated Debt Securities pursuant to the Indenture, shall be payable
semi-annually in arrears on June 4th and December 4th of each year,
commencing on June 4, 1997. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall 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, payment of such Distribution shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date (each date on which distributions are
payable in accordance with this Section 4.1(a), a "Distribution Date").
Accrued Distributions that are not paid on the applicable Distribution Date
will bear interest on the amount thereof (to the extent permitted by law)
at the rate per annum of 7.53% thereof, compounded semi-annually from the
relevant Distribution Date.
(b) The Trust Securities represent undivided beneficial ownership
interests in the Trust Property, and, assuming payments of interest on the
Junior Subordinated Debt Securities are made when due (and before giving
effect to Additional Distributions, defined below, if applicable),
Distributions on the Trust Securities shall be payable at a rate of 7.53%
per annum of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full period shall be computed on the basis of
a 360-day year of twelve 30-day months. The amount of Distributions for any
partial period shall be computed on the basis of the number of days elapsed
in a 360-day year of twelve 30-day months. The amount of Distributions
payable for any period shall include the Additional Distributions, if any.
(c) So long as no Debenture Event of Default has occurred and is
continuing, the Depositor has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debt Securities at any time
and from time to time for a period not exceeding 10 consecutive semi-annual
periods (an "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 deferral, semi-annual
Distributions on the Trust Securities by the Trust will also be deferred
(and the amount of Distributions to which Holders of the Trust Securities
are entitled will accumulate additional Distributions thereon at the rate
per annum of 7.53% per annum, compounded semi-annually) from the relevant
payment date for such Distributions, but not exceeding the interest rate
then accruing on the Junior Subordinated Debt Securities. In addition, in
the event that a Registration Default (as defined in the Registration
Agreement) occurs, additional Distributions shall accumulate on the Trust
Securities at a rate of 0.25% per annum of the Liquidation Amount of the
Trust Securities from and including the date on which such Registration
Default shall occur to but excluding the date on which such Registration
Default shall have been cured. The aggregate amount of such additional
Distributions payable with respect to the preceding sentence shall not
exceed 0.75% per annum. (each type of increase in Distribution, described
in Section 4.1(c), an "Additional Distribution").
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(d) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on-hand
and available in the Payment Account for the payment of such Distributions.
(e) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders of record as they appear
on the Securities Register for the Trust Securities on each May 20th and
November 20th .
SECTION 4.2. Redemption.
(a) On each Junior Subordinated Debt Securities Redemption Date and
on the Stated Maturity of the Junior Subordinated Debt Securities, the Trust
will be required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price, which shall be
equal to (i) in the case of the repayment of the Junior
Subordinated Debt Securities on the Stated Maturity of the Junior
Subordinated Debt Securities, 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 prepayment of the Junior Subordinated Debt Securities,
the Optional Redemption Price (equal to the Optional Prepayment
Price in respect of the Junior Subordinated Debt Securities). If
less than all of the Junior Subordinated Debt Securities are to be
repaid or redeemed on a Redemption Date, then the proceeds from
such repayment or redemption shall be allocated to the redemption
of the Capital Securities and the Common Securities on pro rata
basis. The amount of premium, if any, paid by the Depositor upon
the redemption of the Junior Subordinated Debt Securities to be
repaid or redeemed on a Redemption Date shall be allocated to the
redemption of the Capital Securities and the Common Securities on
a pro rata basis;
(iii) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(iv) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to be
redeemed and that distributions thereon will cease to accrue on
and after said date.
The Trust in issuing the Trust Securities may use
"CUSIP", and or "private placement" numbers (if then generally in use),
and, if so, the Property Trustee shall indicate the "CUSIP" or "private
placement" numbers of the Trust Securities in notices or redemption and
related materials as a convenience to Securityholders; provided that any
such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Trust Securities or as contained
in any notice of redemption and related material.
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(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of 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
then on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Trust Securities, then, by 12:00 noon, New York City time,
on the Redemption Date, subject to Section 4.2(c), the Property Trustee
will, so long as the Capital Securities are in book-entry-only form,
irrevocably deposit with the Clearing Agency for the Capital Securities
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the holders thereof. With respect to Capital Securities
held in certificated form, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders
thereof upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the
Register for the Trust 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 Securityholders holding Trust Securities so called for redemption
will cease, except the right of such Securityholders to receive the
applicable Redemption Price and any Distribution payable on or prior to the
Redemption Date, but without interest, and such Capital Securities will
cease to be outstanding. In the event that any date on which any applicable
Redemption Price is payable is not a Business Day, then payment of the
applicable Redemption Price 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
falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same force and
effect as if made on such date. In the event that payment of the applicable
Redemption Price in respect of any Trust Securities called for redemption
is improperly withheld or refused and not paid either by the Trust or by
the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust
Securities 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.
(e) Payment of the applicable Redemption Price on, and any
distributions of Junior Subordinated Debt Securities to holders of, the
Trust Securities shall be made to the recordholders thereof as they appear
on the Securities Register for the Trust Securities on the relevant record
date, and, with respect to Trust Securities held in certificated form, upon
surrender of such certificated Trust Securities to the Paying Agent.
(f) Subject to Section 4.3(a), if less than all the outstanding
Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the
Common Securities and the Capital Securities. The particular Trust
Securities to be redeemed shall be selected on a pro rata basis (based upon
Liquidation Amounts) not more than 60 days prior to the Redemption Date by
the Property Trustee from the Outstanding Trust Securities not previously
called for redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for redemption
of portions (equal to $1,000 or an integral multiple of $1,000 in excess
thereof)
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of the Liquidation Amount of Trust Securities of a denomination larger than
$1,000. The Property Trustee shall promptly notify the Security Registrar
in writing of the Trust Securities selected for redemption and, in the case
of any Trust Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Declaration of
Trust, unless the context otherwise requires, all provisions relating to
the redemption of Trust Securities shall relate in the case of any Trust
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Trust Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Distributions,
if applicable) on, and the Redemption Price of the Trust Securities, as
applicable, shall be made subject to Section 4.2(f), pro rata to the
holders of the Common Securities and the Capital 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 (including Additional Distributions, if
applicable) on, or 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 (including Additional
Distributions, if applicable) on all 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 Outstanding Capital Securities, shall have been
made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Distributions, if applicable) on, or
the Redemption Price of, Capital Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived any right to act with respect to
any such Event of Default under this Declaration of Trust until the effect
of all such Events of Default with respect to the Capital Securities have
been cured, waived or otherwise eliminated. Until all such Events of
Default under this Declaration of Trust with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities
and not on behalf of the 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.
SECTION 4.4. Payment Procedures.
In the event Definitive Capital Securities Certificates are
issued, payments of Distributions (including Additional Distributions, if
applicable) in respect of the Capital Securities shall be made by check
mailed to the address of the Person entitled thereto at such address as
shall appear on the Securities Register. If the Capital Securities are held
by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, which shall credit the relevant
Persons' accounts at such Clearing Agency on the applicable Distribution
Dates. Payments in respect of the Common Securities shall be made in such
manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
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SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all United States federal,
state and local tax and information returns and reports required to be
filed by or in respect of the Trust. In this regard, the Administrative
Trustees shall (a) prepare and file (or cause to be prepared and filed) the
appropriate Internal Revenue Service form required to be filed in respect
of the Trust in each taxable year of the Trust and (b) prepare and furnish
(or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form required to be provided pursuant
to the form referenced in clause (a) hereof. The Administrative Trustees
shall provide the Depositor and the Property Trustee with a copy of all
such returns and reports promptly after such filing or furnishing. The
Trustees shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to
any payments to Securityholders under the Trust Securities.
SECTION 4.6. Payment of Taxes; Duties, Etc. of the Trust.
Pursuant to Section 10.6 of the Indenture, the Depositor, as
borrower, has agreed to, and it shall, promptly pay any taxes, duties or
governmental charges of whatever nature (other than United States
withholding taxes) imposed on the Trust by the United States or any other
taxing authority.
SECTION 4.7. Payments under Indenture.
Any amount payable hereunder to any Holder of Capital Securities
(and any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (and Owner) has directly received
pursuant to Section 5.8 of the Indenture.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
SECTION 5.2. Trust Securities Certificates.
The Capital Securities Certificates shall be issued in $100,000
Liquidation Amount (100 Capital Securities) and integral multiples of
$1,000 in excess thereof, and the Common Securities Certificates shall be
issued in denominations of $1,000 Liquidation Amount and integral multiples
thereof. The Trust Securities Certificates shall be executed on behalf of
the Trust by the manual or facsimile signature of at least one
Administrative Trustee. Trust Securities Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefits of this
Declaration of Trust, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a
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Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such
Trust Securities Certificate in such transferee's name pursuant to Sections
5.4, 5.11 and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered
to or upon the written order of the Depositor, signed by its chairman of
the board, its president, any executive vice president or any vice
president, treasurer or assistant treasurer or controller without further
corporate action by the Depositor, in authorized denominations.
SECTION 5.4. Restrictions on Transfer; Registration of Transfer
and Exchange of Capital Securities Certificates.
The Capital Securities will be issued, and may be transferred,
only in blocks having a Liquidation Amount of not less than $100,000. Any
transfer, sale or other disposition of 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 Capital Securities for any purpose, including but not
limited to the receipt of Distributions on such Capital Securities, and
such transferee shall be deemed to have no interest whatsoever in such
Capital Securities.
The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a register or registers for the
purpose of registering Holders of the Trust Securities and transfers and
exchanges of Capital Securities (the "Securities Register") in which the
registrar designated by the Depositor (the "Securities Registrar"), subject
to such reasonable regulations as it may prescribe, shall provide for the
registration of Holders of the Capital Securities and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Holders of the
Capital Securities as herein provided. The Bank shall be the initial
Securities Registrar and Transfer Agent. The provisions of Sections 8.1,
8.3 and 8.6 hereunder shall apply to the Bank also in its role as
Securities Registrar and Transfer Agent.
If Definitive Capital Securities Certificates are issued, then
upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in
the name of the designated transferee or transferees, one or more new
Capital Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Capital Securities that have been called for redemption. In
the event that Definitive Capital Securities Certificates are issued, at
the option of a Holder, Capital Securities Certificates may be exchanged
for other Capital Securities Certificates in authorized denominations of
the same class and of a like aggregate Liquidation Amount upon surrender of
the Capital Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.8.
Every Definitive Capital Securities Certificate, if issued,
presented or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Administrative Trustees and the Securities Registrar duly executed by the
Holder or
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his attorney duly authorized in writing. Each Capital Securities
Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by an Administrative Trustee or his
agent in accordance with such Persons customary practice. No service charge
shall be made for any registration of transfer or exchange of Capital
Securities Certificates, but the Securities Registrar may require payment
of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Capital Securities
Certificates.
The Capital Securities will bear a legend to the following effect,
unless the Administrative Trustees determine otherwise in compliance with
applicable law:
"THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(i) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT ACQUIRING THE CAPITAL SECURITIES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (ii) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS."
Neither the Property Trustee nor the Securities Registrar shall
have any liability in respect of transfers of Trust Securities effected by
the Clearing Agency.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
Provided Definitive Capital Securities Certificates are issued, if
(a) any mutilated Trust Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may
be required by them to save each of them harmless, then in the absence of
notice that such Trust Securities Certificate shall have been acquired by a
bona fide purchaser, the Administrative Trustees, or any one of them, on
behalf of the Trust shall execute and make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section, the Administrative
Trustees or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Securityholders.
The Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities are issued as the owner of such Trust
Securities for the purpose of receiving distributions and for all
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other purposes whatsoever, and neither the Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.
SECTION 5.7. Access to List of Securityholders' Names and Addresses.
Each Owner of a Trust Securities acknowledges that the Depositor,
the Property Trustee, the Delaware Trustee or the Administrative Trustees
may from time to time make reasonable use of information consisting of such
Owner's name and address, including the furnishing of a list of such names
and addresses as contemplated hereunder, and each Owner shall be deemed to
have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name
and address, regardless of the source from which such information was
derived.
SECTION 5.8. Maintenance of Office or Agency; Transfer Agent
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Definitive Capital Securities Certificates, if
issued, may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustees in respect of the Trust
Securities may be served. The Administrative Trustees initially designate
Bankers Trust Company, Four Albany Street, New York, NY 10006, Attention:
Corporate Trust and Agency Group - Corporate Market Services, as its
corporate trust office for such purposes. The Administrative Trustees shall
give prompt written notice to the Depositor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency. The Bank shall act as initial transfer agent for the Trust
Securities.
SECTION 5.9. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from
the Payment Account and shall report the amounts of such Distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent
shall have the revocable power to withdraw funds from the Payment Account
for the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove any Paying Agent
if such Administrative Trustees determine in their sole discretion that
such Paying Agent shall have failed to perform its obligations under this
Declaration of Trust in any material respect. The Paying Agent shall
initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrative Trustees, the Property Trustee
and the Depositor. In the event that the Bank shall no longer be the Paying
Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed
by the Administrative Trustees to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also
in its role as Paying Agent, for so long as the Bank shall act as Paying
Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Declaration of Trust to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
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SECTION 5.10. Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest
extent permitted by law, other than a transfer in connection with a
consolidation or merger of the Depositor into another corporation, or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section 8.1 of the
Indenture, any attempted transfer of the Common Securities shall be void.
The Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS
NOT TRANSFERABLE".
SECTION 5.11. Book-Entry Capital Securities Certificates;
Common Securities Certificate.
(a) The Capital Securities, upon original issuance, will be
represented by one or more Capital Securities in registered book-entry
global form (the "Global Capital Securities"), to be delivered to the
Property Trustee as custodian for the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Capital Securities shall initially be
registered on the Securities Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Capital Securities Certificate representing such Owner's
interest in such Global Capital Securities, except as provided in Section
5.13. Unless and until Definitive Capital Securities Certificates have been
issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be
in full force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Declaration of Trust relating to the Global Capital Securities
(including the payment of the Liquidation Amount of and
Distributions on the Global Capital Securities and the giving of
instructions or directions to Owners of Global Capital Securities)
as the sole Holder of Global Capital Securities and shall have no
obligations to the Owners thereof;
(iii) the rights of the Owners of the Global Capital
Securities shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing
Agency Participants. Pursuant to the Letter of Representations,
unless and until Definitive Capital Securities Certificates are
issued pursuant to Section 5.13, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants
and receive and transmit payments on the Capital Securities to
such Clearing Agency Participants;
(iv) the Global Capital Securities may be transferred, in
whole but not in part, only to another nominee of the initial
Clearing Agency or to a successor thereof or its nominee.
Beneficial interests in the Global Capital Securities may not be
exchanged for Capital Securities in certificated form except as
set forth in Section 5.13; and
(v) interests in the Global Capital Securities are
subject to restrictions on transfer as set forth in Section 5.4.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
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Except as set forth in Section 10.11 hereof, to the extent that the
provisions of this Section 5.11 conflict with any other provisions of this
Declaration of Trust, the provisions of this Section 5.11 shall prevail.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners
is required under this Declaration of Trust, unless and until Definitive
Capital Securities Certificates shall have been issued to Owners pursuant
to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing
Agency, and shall have no obligations to give duplicates thereof to the
Owners.
SECTION 5.13. Definitive Capital Securities Certificates.
Notwithstanding any other provision in this Declaration of Trust,
no Global Securities Certificate may be exchanged in whole or in part for
Definitive Capital Securities Certificates unless (a) the Clearing Agency
(i) notifies the Property Trustee that it is no longer willing or able to
properly discharge its responsibilities with respect to the Capital
Securities, and the Depositor is unable to locate a qualified successor or
(ii) has ceased to be a clearing agency registered under the Exchange Act,
(b) the Depositor at its option advises the Trustees in writing that it
elects to terminate the book-entry system through the Clearing Agency or
(c) there shall have occurred and be continuing a Debenture Event of
Default. In addition, beneficial interests in a Global Capital Security may
be exchanged by or on behalf of the Clearing Agency for certificated
Capital Securities upon request by the Clearing Agency but only upon at
least 20 days' prior written notice given to the Property Trustee in
accordance with the Clearing Agency customary procedures. Upon the
occurrence of the foregoing events, the Administrative Trustee shall notify
the Clearing Agency and the Clearing Agency shall notify all Owners of
Capital Securities and the other Trustees of the occurrence of any such
event and of the availability of the Definitive Capital Securities
Certificates to Owners of such class or classes, as applicable, requesting
the same. Upon surrender to the Administrative Trustees of the Capital
Securities Certificate or Certificates representing the Global Capital
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall
execute the Definitive Capital Securities Certificates in accordance with
the instructions of the Clearing Agency. Neither the Securities Registrar
nor the Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions. Upon the issuance of Definitive Capital
Securities Certificates, the Trustees shall recognize the Holders of the
Definitive Capital Securities Certificates as Securityholders. The
Definitive Capital Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the manual or
facsimile execution thereof by the Administrative Trustees or any one of
them. If issued, the Definitive Capital Securities Certificates will be
subject to restrictions on transfer as set forth in Section 5.4.
SECTION 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section
2.9, and the Securityholders shall not have any right or title therein
other than the undivided beneficial ownership interest in the assets of the
Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the
Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Declaration of Trust. The Trust Securities shall have
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no preemptive or singular rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be
fully paid and nonassessable. The Holders of the Trust Securities, in their
capacities as such, shall 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.
(b) For so long as any Capital Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the
holders of not less than 25% in principal amount of the outstanding Junior
Subordinated Debt Securities fail to declare the principal of all of the
Junior Subordinated Debt Securities to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Capital Securities
then Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee with a copy to the Property Trustee;
and upon any such declaration such principal amount of and the accrued
interest on all of the Junior Subordinated Debt Securities shall become
immediately due and payable, provided that the payment of principal and
interest on such Junior Subordinated Debt Securities shall remain
subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect
to the Junior Subordinated Debt Securities has been made and before a
judgment or decree for payment of the money due has been obtained by the
Debenture Trustee as provided in the Indenture, the Holders of a majority
in Liquidation Amount of the Capital Securities, by written notice to the
Property Trustee, the Depositor and the Debenture Trustee, may rescind and
annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of
the Junior Subordinated Debt Securities,
(B) the principal of (and premium, if any, on) any
Junior Subordinated Debt Securities which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Junior
Subordinated Debt Securities, and
(C) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture
Trustee and the Property Trustee, their agents and counsel;
and
(ii) all Events of Default with respect to the Junior
Subordinated Debt Securities, other than the non-payment of
the principal of the Junior Subordinated Debt Securities
which has become due solely by such acceleration, have been
cured or waived as provided in Section 5.13 of the
Indenture.
The Holders of a majority in aggregate Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital
Securities, waive any past default under the Indenture, 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
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Subordinated Debt Securities. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of
the Capital Securities all or part of which is represented by Global
Capital Securities, a record date shall be established for determining
Holders of Outstanding Capital Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join
in such notice, whether or not such Holders remain Holders after such
record date provided, that, unless such acclamation of acceleration, or
rescission and annulment, as the case may be, shall have become effective
by virtue of the requisite percentage having joined in such notice prior to
the day which is 90 days after such record date, such notice of declaration
of acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90 day period, a
new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written
notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to
the provisions of this Section 5.14(c).
(c) For so long as any Capital Securities remain Outstanding, to
the fullest extent permitted by law and subject to the terms of this
Declaration of Trust and the Indenture, upon a Debenture Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture, any Holder of
Capital Securities shall have the right to institute a proceeding directly
against the Depositor, pursuant to Section 5.8 of the Indenture, for
enforcement of payment to such Holder of the principal amount of or
interest on Junior Subordinated Debt Securities having a principal amount
equal to the Liquidation Amount of the Capital Securities of such Holder (a
"Direct Action"). Except as set forth in Sections 5.14(b) and 5.14 (c), the
Holders of Capital Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Junior
Subordinated Debt Securities.
(d) A Securityholder may institute a legal proceeding directly
against the Guarantor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust or
any person or entity.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Capital Securityholder's Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 6.1(c),
8.10 and 10.3 and in the Indenture and as otherwise required by law, no
Holder of Capital Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Trust
or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Capital Securityholders from time to time
as partners or members of an association. Unless a Debenture Event of
Default shall have occurred and be continuing, any Trustee may be removed
at any time by the vote of the Common Securityholder. The right to vote to
appoint, remove or replace the Administrative Trustees is vested
exclusively in the Depositor as the holder of the Common Securities.
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(b) So long as any Junior Subordinated Debt Securities are held
by theProperty Trustee, the 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 such Junior Subordinated Debt Securities,
(ii) waive any past default which 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 at least 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 written consent of each
Holder of Capital Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Capital
Securities, except by a subsequent vote of the Holders of Capital
Securities. The Property Trustee shall notify all Holders of the Capital
Securities of any notice of default received from the Debenture Trustee
with respect to the Junior Subordinated Debt Securities. In addition to
obtaining the foregoing approvals of the Holders of the Capital Securities,
prior to taking any of the foregoing actions, the Trustees shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not fail to be classified as a
grantor trust for United States federal income tax purposes on account of
such action.
(c) If any proposed amendment to the Declaration of Trust provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences
or special rights of the Trust Securities, whether by way of amendment to
the Declaration of Trust or otherwise, or (ii) the dissolution, winding-up
or termination of the Trust, other than pursuant to the terms of this
Declaration of Trust, then the Holders of Outstanding Trust Securities as a
class will be entitled to vote on such amendment or proposal.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.9 to each Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders
to vote on any matter upon the written request of the Securityholders of
record of 25% of the Securities (based upon their Liquidation Amount) and
the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Securityholders to vote on any matters
as to which Securityholders are entitled to vote.
Securityholders of record of 50% of the Outstanding Securities
(based upon their Liquidation Amount), present in person or represented by
proxy, shall constitute a quorum at any meeting of Securityholders.
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If a quorum is present at a meeting, an affirmative vote by the
Securityholders of record present, in person or by proxy, holding more than
a majority of the Securities (based upon their Liquidation Amount) held by
the Securityholders of record present, either in person or by proxy, at
such meeting shall constitute the action of the Securityholders, unless
this Declaration of Trust requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at
any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust
as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Proxies may be solicited in the
name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Securities,
but if more than one of them shall be present at such meeting in person or
by proxy, and such joint owners or their proxies so present disagree as to
any vote to be cast, such vote shall not be received in respect of such
Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding more than a majority
of all Outstanding Securities entitled to vote at the meeting (based upon
their Liquidation Amount) entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any express
provision of this Declaration of Trust) shall consent to the action in
writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written consent, or
to participate in any distribution on the Trust Securities in respect of
which a record date is not otherwise provided for in this Declaration of
Trust, or for the purpose of any other action, the Administrative Trustees
may from time to time fix a date, not more than 90 days prior to the date
of any meeting of Securityholders or the payment of a distribution or other
action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
SECTION 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Declaration of Trust
to be given, made or taken by Securityholders or Owners may be embodied in
and evidenced by one or more instruments of substantially similar tenor
signed by such
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Securityholders or Owners in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to
an Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Securityholders or Owners signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Declaration of Trust and (subject to Section 8.1) conclusive in favor of
the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which any
Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust
in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part
of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to
such matter.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably
related to such Securityholder's interest as a Securityholder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on
behalf of and as to itself, hereby represents and warrants for the benefit
of the Depositor and the Securityholders that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of New
York, with trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of this Declaration.
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate action
on the part of the Property Trustee; and the Declaration has been duly
executed and delivered by the Property Trustee, and constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
(d) At the Closing Date, the Property Trustee has not knowingly
created any liens or encumbrances on such Trust Securities.
(e) No consent, approval or authorization of, or registration with
or notice to, any New York State or federal banking authority is required for
the execution, delivery or performance by the Property Trustee, of the
Declaration.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration.
(g) The execution, delivery and performance by the Delaware Trustee
of the Declaration has been duly authorized by all necessary corporate action
on the part of the Delaware Trustee; and the Declaration has been duly
executed and delivered by the Delaware Trustee, and constitutes a legal,
valid and binding obligation of the Delaware Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' right generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance or the Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
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(i) No consent, approval or authorization of, or registration with
or notice to, any state or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this
Declaration.
(j) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of
the Securityholders that:
(a) the Trust Securities Certificates issued at the Closing Date
on behalf of the Trust have been duly authorized and will have been duly
and validly executed, issued and delivered by the Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Declaration of Trust, and the Securityholders will be, as of each such
date, entitled to the benefits of this Declaration of Trust; and
(b) there are no taxes, fees or other governmental charges payable
by the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Property Trustee or the
Delaware Trustee, as the case may be, of this Declaration of Trust.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Declaration of Trust and, in the case of the Property
Trustee, by the Trust Indenture Act; provided, however, that the Property
Trustee shall not be subject to the provisions of the Trust Indenture Act
until such time as this Declaration of Trust becomes qualified under the
Trust Indenture Act upon the effectiveness of a registration statement
pursuant to the Registration Agreement. Notwithstanding the foregoing, no
provision of this Declaration of Trust shall require the Trustees to expend
or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any of
their rights or powers, if they shall have reasonable grounds for believing
that repayment of such funds or indemnity satisfactory to it against such
risk or liability is not reasonably assured to it. Whether or not herein
expressly so provided, every provision of this Declaration of Trust
relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this
Article. Nothing in this Declaration of Trust shall be construed to release
an Administrative Trustee from liability for his own grossly negligent
action, his own grossly negligent failure to act, or his own willful
misconduct. To the extent that, at law or in equity, an Administrative
Trustee has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to the Securityholders, such Administrative Trustee
shall not be liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of this Declaration of
Trust. The provisions of this Declaration of Trust, to the extent that they
restrict the duties and liabilities of the Administrative Trustees
otherwise existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
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(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance of a Trust Security,
agrees that it will look solely to the revenue and proceeds from the Trust
Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any
amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.l(b) does not
limit the liability of the Trustees expressly set forth elsewhere in this
Declaration of Trust or, in the case of the Property Trustee, in the Trust
Indenture Act, if applicable.
(c) No provision of this Declaration of Trust shall be construed
to relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) the Property Trustee shall not be liable for any error
of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Property 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 Property Trustee, or
exercising any trust or power conferred upon the Property Trustee
under this Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the Junior
Subordinated Debt Securities and the Payment Account shall be to
deal with such Property in a similar manner as the Property
Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the
Property Trustee under this Declaration of Trust and the Trust
Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor; and money held by the Property Trustee
need not be segregated from other funds held by it except in
relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.1 and except to the extent otherwise
required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Declaration of
Trust nor shall the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the Depositor.
SECTION 8.2. Events of Default Notices; Deferral of Interest
Payment Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property Trustee,
the Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.9, notice of such Event of Default to the
Securityholders, the Administrative Trustees and the Depositor, unless such
Event of Default shall have been cured or
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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.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Junior Subordinated Debt Securities pursuant to the Indenture, the
Administrative Trustee shall transmit, in the manner and to the extent
provided in Section 10.9, notice of such exercise to the Securityholders
and the Property Trustee, unless such exercise shall have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration of
Trust the Property Trustee is required to decide between alternative
courses of action or (ii) in construing any of the provisions of this
Declaration of Trust the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (iii) the
Property Trustee is unsure of the application of any Provision of this
Declaration of Trust, then, except as to any matter as to which the
Securityholders are entitled to vote under the terms of this Declaration of
Trust, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action
to be taken and the Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be instructed in
writing to take, or to refrain from taking, by the Depositor; provided,
however, that if the Property Trustee does not receive such instructions of
the Depositor within ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in such notice (which
to the extent practicable shall not be less than two Business Days), it
may, but shall be under no duty to, take or refrain from taking such action
not inconsistent with this Declaration of Trust as it shall deem advisable
and in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Declaration of Trust shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration of Trust,
the Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property 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, shall be
promptly delivered by the Depositor or the Administrative Trustees; (which
Officers' Certificate will be evidence only for purposes of determining
entitlement to indemnification of the Property Trustee from the Depositor
but not with respect to any liability to Security holders).
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(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel
may be counsel to the Depositor or any of its Affiliates, and may include
any of its employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken
suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice, such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its employees;
the Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration of Trust from any court
of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration of Trust at
the request or direction of any of the Securityholders pursuant to this
Declaration of Trust, unless such Securityholders shall have offered to the
Property Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(h) the Property 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,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Securityholders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(i) the Property Trustee may execute any of its trusts or powers
hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of or for the
supervision of any such agent or attorney appointed by it with due care
hereunder;
(j) whenever in the administration of this Declaration of Trust
the Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be fully
protected in acting in accordance with such instructions;
(k) except as otherwise expressly provided by this Declaration of
Trust, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration of
Trust;
(l) when the Property Trustee incurs expenses or renders services
in connection with a Bankruptcy Event, such expenses (including the fees
and expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law
or law relating to creditors rights generally; and
(m) the Property Trustee shall not be charged with knowledge of an
Event of Default unless a Responsible Officer of the Property Trustee
obtains actual knowledge of such event or the Property
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Trustee receives written notice of such event from Securityholders holding
at least 25%, of the Outstanding Trust Securities (based upon Liquidation
Amount).
No provision of this Declaration of Trust shall be deemed to
impose any duty or obligation on the Property 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
Property 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 Property Trustee shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the
Trustees do not assume any responsibility for their correctness. The
Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Junior Subordinated Debt Securities.
SECTION 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in
its individual or any other capacity, may become the owner or pledgee of
Trust Securities and, subject to Sections 8.8 and 8.13, may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee
or such other agent.
SECTION 8.6. Compensation, Indemnity, Fees.
Pursuant to Section 10.6 of the Indenture, the Depositor, as
borrower, agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Declaration of Trust (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or willful misconduct;
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any
Trustee, (iii) any officer, director, shareholder, employee, representative
or agent of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration of Trust, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions; and
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(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand action, suit or
proceeding upon receipt by the Depositor of (i) a written affirmation by or
on behalf of the Indemnified Person of its or his good faith belief that it
or he has met the standard of conduct set forth in this Section 8.6 and
(ii) an undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
The provisions of this Section 8.6 shall survive the termination
of this Declaration of Trust or the earlier resignation or removal of any
Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee (in the case of the Property
Trustee, subject to Section 8.8 hereof) may engage in or possess an
interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and none of the Trust, the Holders of Trust Securities, the
Depositor or any such Trustee shall have any rights by virtue of this
Declaration of Trust in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Depositor, nor any Trustee, shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could
be taken by the Trust, and the Depositor or any Trustee shall have the
right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or
other opportunity. Any Trustee may engage or be interested in any financial
or other transaction with the Depositor or any Affiliate of the Depositor,
or may act as depository for, trustee or agent for, or act on any committee
or body of holders of, securities or other obligations of the Depositor or
its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility
of Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person
that is a national or state chartered bank and eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to
the Trust Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article; provided, however,
that the Property Trustee need not qualify under the Trust Indenture Act
until such time as this Declaration of Trust is qualified under the Trust
Indenture Act.
(b) There shall at all times be one or more Administrative
Trustees hereunder. Each Administrative Trustee shall be either a natural
person who is at least 21 years of age or a legal entity that shall act
through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of
age and a resident of the State of Delaware or (ii) a legal entity
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with its principal place of business in the State of Delaware and that
otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Declaration of Trust.
SECTION 8.9. Co-Trustees and Separate 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 Property may at the time be located, the Depositor and the
Administrative Trustees, by agreed action of the majority of such Trustees,
shall have power to appoint, and upon the written request of the
Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Property Trustee either to act as co-trustee,
jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law 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 the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the
Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee alone shall
have power to make such appointment. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who
is at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully confirming
to such co-trustee or separate trustee such property, title, right, or
power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby conferred
or imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act
is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event
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such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee
or any other trustee hereunder.
(e) The Property Trustee shall not be required to supervise any
co-trustee or separate trustee nor shall it be liable by reason of any act
of a co-trustee or separate trustee or any employees or agents of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee")
and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, a Relevant Trustee
may resign at any time by giving written notice thereof to the
Securityholders. If the instrument of acceptance by the successor Trustee
required by Section 8.11 shall not have been delivered to the Relevant
Trustee within 30 days after the giving of such notice of resignation, the
Relevant Trustee may petition, at the expense of the Trust, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them,
may be removed at such time by Act of the Holders of a majority in
Liquidation Amount of the Outstanding Capital Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust).
An Administrative Trustee may be removed by Act of the Common
Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee
for any cause, at a time when no Debenture Event of Default shall have
occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees and the retiring Trustee shall comply with
the applicable requirements of Section 8.11. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing
to act as the Property Trustee or the Delaware Trustee, as the case may be,
at a time when a Debenture Event of Default shall
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have occurred and be continuing, the Capital Securityholders, by Act of the
Capital Securityholders of a majority in Liquidation Amount of the Capital
Securities then Outstanding delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and such
successor Trustee shall comply with the applicable requirements of Section
8.11. If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a Debenture
Event of Default shall have occurred and be continuing, the Common
Securityholder, by Act of the Common Securityholder delivered to the
Administrative Trustee, shall promptly appoint a successor Administrative
Trustee or Administrative Trustees and such successor Administrative
Trustee or Trustees shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Securityholder or the Capital Securityholders and accepted
appointment in the manner required by Section 8.11, any Securityholder who
has been a Securityholder of Trust Securities for at least six months may,
on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to
all Securityholders in the manner provided in Section 10.8 and shall give
notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if
it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration of Trust, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of
remaining Administrative Trustees if there are at least two of them or (b)
otherwise by the Depositor (with the successor in each case being a Person
who satisfies the eligibility requirement for Administrative Trustees or
Delaware Trustee, as the case may be, set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee, such
successor Trustee so appointed shall execute, acknowledge and deliver to
the Trust and to the retiring Trustee an instrument accepting such
appointment , and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee, but, on the request of
the Depositor or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights powers and trusts of the retiring
Trustee and if the Property Trustee is the resigning Trustee the Property
Trustee shall duly assign, transfer and deliver to the successor Property
Trustee all Trust Property and money held by such retiring Property Trustee
hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee
with respect to the Trust Securities shall execute and deliver an amendment
hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the
Trust and (b) shall add to or change any of the provisions of this
Declaration of Trust as shall be necessary to provide for or facilitate the
administration of the Trust by more than one Relevant Trustee, it being
understood that nothing herein or
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in such amendment shall constitute such Relevant Trustees co-trustees if
the same trust and that each such Relevant Trustee shall be Trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Relevant Trustee; and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Relevant Trustee; but, on request of the Trust
or any successor Relevant Trustee such retiring Relevant Trustee shall duly
assign, transfer and deliver to such successor Relevant Trustee all Trust
Property, all proceeds thereof and money held by such retiring Relevant
Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph,
as the case may be.
No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business.
Any Person 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 corporation
resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Relevant Trustee,
shall be the successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor
or Trust.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other similar judicial proceeding relative to the Trust or
any other obligor upon the Trust Securities or the property of the Trust or
of such other obligor or their creditors, the Property Trustee
(irrespective of whether any Distributions on the Trust Securities shall
then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Property Trustee shall have made any demand
on the Trust for the payment of any past due Distributions) shall be
entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Property Trustee and, in the
event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel, and any other amounts due the
Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 8.14. Reports by Property Trustee.
Upon qualification of this Declaration of Trust under the Trust
Indenture Act
(a) Not later than March 31 of each year commencing with March 31,
1998, the Property Trustee shall transmit to all Securityholders in
accordance with Section 10.8, and to the Depositor, a brief report dated as
of the prior December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu
thereof, if to the best of its knowledge it has continued to be
eligible under said Section, a written statement to such effect;
and
(ii) any change in the property and funds in its
possession as Property Trustee since the date of its last report
and any action taken by the Property Trustee in the performance of
its duties hereunder which it has not previously reported and
which in its opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its
actions under this Declaration of Trust as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each
national stock exchange, the NASDAQ National Market or such other
interdealer quotation system or self-regulatory organization upon which the
Trust Securities are listed or traded, with the Commission and with the
Depositor.
SECTION 8.15. Reports to the Property Trustee.
Upon qualification of this Indenture under the Trust Indenture
Act, the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314(a) 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 8.16. Evidence of Compliance with Conditions Precedent.
Upon qualification of this Indenture under the Trust Indenture
Act, each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of
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compliance with any conditions precedent, if any, provided for in this
Declaration of Trust 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) of the Trust Indenture
Act shall be given in the form of an Officers' Certificate.
SECTION 8.17 Number of Trustees.
(a) The number of Trustees shall be four, provided that the Holder
of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees. The Property Trustee and
the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filled with a Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other Provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Declaration of
Trust.
SECTION 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.7(a), including any registration statement or
amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the provisions of this
Declaration of Trust, as set forth herein.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date; Termination Upon
Tax Event.
(a) Unless earlier terminated, the Trust shall automatically
terminate on December 3, 2050 (the "Expiration Date"), following the
distribution of the Trust Property in accordance with Section 9.4.
(b) If a Tax Event shall occur and be continuing, the Depositor
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
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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 the 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; provided, however, that following such
distribution of the Junior Subordinated Debt Securities or pursuant to
Section 9.2(b), the Depositor 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 guidelines or policies of
the Federal Reserve.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor or the Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the Holder
of the Common Securities at any time (which direction is optional and
wholly within the discretion of the Holder of the Common Securities
(including upon the occurrence and continuation of a Tax Event in respect
of the Trust)) to terminate the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law,
distribute a Like Amount of the Junior Subordinated Debt Securities to
Securityholders in exchange for the Capital Securities;
(c) the redemption of all of the Trust Securities in connection
with the redemption of all the Junior Subordinated Debt Securities
(including upon the occurrence and continuation of a Tax Event pursuant to
Section 11.7(b) of the Indenture); and
(d) the entry of an order for dissolution of the Trust by a court
of competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Trustees
and the Trust created and continued hereby shall terminate upon the latest
to occur of the following: (a) the payment of any expenses owed by the
Trust, (b), the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the
Trust Securities, and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or
(d) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, to each Securityholder a Like
Amount of Junior Subordinated Debt Securities, subject to Section 9.4(d).
Notice of liquidation shall be given by the Property Trustee by
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first-class mail, postage prepaid, mailed not later than 30 nor more than
90 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date (which in the case of any
liquidation following the occurrence of a Tax Event shall not be
more than 90 days following such occurrence);
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and
any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Junior Subordinated
Debt Securities; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Junior Subordinated Debt Securities, or if
Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem
appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Junior
Subordinated Debt Securities to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than
45 days prior to the Liquidation Date) and, either itself acting as
exchange agent or through the appointment of a separate exchange agent,
shall establish such procedures as it shall deem appropriate to effect the
distribution of Junior Subordinated Debt Securities in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Junior
Subordinated Debt Securities will be issued to holders of Trust Securities,
upon surrender of such certificates to the Administrative Trustees or their
agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of
Junior Subordinated Debt Securities accruing interest at the rate provided
for in the Junior Subordinated Debt Securities from the last Distribution
Date on which a Distribution was made on such Trust Securities Certificates
until such certificates are so surrendered (or until such certificates are
so surrendered, no payments of interest or principal will be made to the
Holders of Trust Securities Certificates with respect to such Junior
Subordinated Debt Securities) and (iv) all rights Securityholders holding
Trust Securities will cease, except the right of such securityholders to
receive Junior Subordinated Debt Securities upon surrender of Trust
Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.4, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the Junior
Subordinated Debt Securities in the manner provided herein is determined by
the Property Trustee not to be practical, the Trust Property shall be
liquidated, and the Trust shall be dissolved, wound-up or terminated, by
the Property Trustee in such manner as the Property Trustee determines. In
such event, on the date of the dissolution, winding-up or other termination
of the Trust, Securityholders will be entitled to receive out of the assets
of the Trust available for distribution to Securityholders after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law, an amount equal to the aggregate of Liquidation Amount per
Trust Security plus accumulated and unpaid Distributions thereon
to the date of payment (such amount being the "Liquidation Distribution").
If, upon any such dissolution, winding up or termination, the Liquidation
Distribution can be paid only in part because the Trust has insufficient
assets available to pay in full the aggregate Liquidation Distribution,
then, subject to the next succeeding sentence, the amounts payable by the
Trust on the Trust Securities shall be paid on
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a pro rata basis (based upon Liquidation Amounts). The holder of the Common
Securities will be entitled to receive Liquidation Distributions upon any
such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of 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. Any such determination
and liquidation by the Property Trustee shall be conclusive upon the
Securityholders and the Property Trustee shall have no liability in
connection therewith.
SECTION 9.5. 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
pursuant to this Section 9.5. At the request of the Depositor, with the
consent of the Administrative Trustees and without the consent of the
Holders of the Capital Securities, the Property Trustee or the Delaware
Trustee, the Trust may 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 Depositor 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 Depositor has received an Opinion of
Counsel 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 1940 Act
and (viii) the Depositor or any permitted successor or assign 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.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders.
The death or incapacity of any person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate
this Declaration of Trust, nor entitle the legal representatives or heirs
of such person or any Securityholder for such person, to claim an
accounting, take any action or bring any proceeding in any court for a
partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
SECTION 10.2 Liability of the Common Securityholder
The Holder of the Common Securities shall be liable for all the
debts and obligations of the Trust (other than with respect to the Capital
Securities) to the extent not satisfied out of the Trust's assets.
SECTION 10.3. Amendment.
(a) This Declaration of Trust may be amended from time to time by
the Property Trustee, the Administrative Trustees and the Depositor,
without the consent of any Securityholders (i) to cure any ambiguity,
correct or supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Declaration of Trust, which shall
not be inconsistent with the other provisions of this Declaration of Trust;
(ii) to modify, eliminate or add to any provisions of this Declaration of
Trust 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 1940 Act; or (iii) to modify, correct or supplement in any respect the
provisions relating to the exchange of the Trust Securities for identical
securities pursuant to the Registration Rights Agreement; provided,
however, that in the case of clauses (i) and (iii), such action shall not
adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Declaration of Trust shall
become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Declaration of Trust may be amended by the Trustees and the Depositor
with (i) the consent of Trust Securityholders representing not less than a
majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
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 of an investment company under the 1940
Act.
(c) In addition to and notwithstanding any other provision in this
Declaration of Trust, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 6.3 or 6.8 hereof),
this Declaration of Trust 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
Securityholder to institute suit for the enforcement of any such payment on
or after such date. Notwithstanding any other provision herein, without the
unanimous consent of the Securityholders (such
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consent being obtained in accordance with Section 6.3 or 6.8 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Declaration of
Trust, no Trustee shall enter into or consent to any amendment to this
Declaration of Trust which would cause the Trust to fail or cease to
qualify for the exemption from status of an investment company under the
1940 Act or fail or cease to be classified as a grantor trust for United
States federal income tax purposes.
(e) Notwithstanding anything in this Declaration of Trust to the
contrary, without the consent of the Depositor this Declaration of Trust
may not be amended in a manner which imposes any additional obligation on
the Depositor.
(f) Notwithstanding any other provision of this Declaration of
Trust, no amendment to this Declaration of Trust may be made if, as a
result of such amendment, it would cause the Trust to fail to be classified
as a grantor trust for United States federal income tax purposes.
(g) In the event that any amendment to this Declaration of Trust
is made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(h) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration of Trust which
affects its own rights, duties or immunities under this Declaration of
Trust or would otherwise expose the Property Trustee to any liability or be
contrary to applicable law. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers' Certificate stating that any
amendment to this Declaration of Trust is in compliance with this
Declaration of Trust.
SECTION 10.4. Separability.
In case any provision in this Declaration of Trust or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 10.5. Governing Law.
This Declaration of Trust and the rights and obligations of each
of the Securityholders, the Trust and the Trustees with respect to this
Declaration of Trust and the Trust Securities shall be construed in
accordance with and governed by the laws of the State of Delaware without
regard to its conflict of laws principles. The provisions of Sections 3540
and 3561 of Title 12 of the Delaware Code shall not apply to this Trust.
SECTION 10.6. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a
day that is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day that is a Business Day
(except as otherwise provided in Sections 4.1(a) and 4.2(d)), with the same
force and effect as though made on the date fixed for such payment, and no
interest shall accrue thereon for the period after such date.
47
<PAGE>
SECTION 10.7. Successors.
This Declaration of Trust shall be binding upon and shall inure to
the benefit of any successor to the Depositor, the Trust or the Relevant
Trustee, including any successor by operation of law. Except in connection
with a consolidation, merger or sale involving the Depositor that is
permitted under Article VI of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
SECTION 10.8. Headings.
The Article and Section headings are for convenience only and
shall not affect the construction of this Declaration of Trust.
SECTION 10.9. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Declaration of Trust is required or permitted to be given
or served to or upon any Securityholder or the Depositor may be given or
served in writing by deposit thereof, first class postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Capital Securityholder, to such Capital
Securityholder as such Securityholder's name and address may appear on the
Securities Register; and (b) in the case of the Common Securityholder or
the Depositor, to Republic New York Corporation, 452 Fifth Avenue, New
York, NY 10018, Attention: Office of the Secretary, facsimile no.: (212)
382-5982. Any notice to Capital Securityholders may also be given to such
owners as have, within two years preceding the giving of such notice, filed
their names and addresses with the Property Trustee for that purpose. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision
of this Declaration of Trust is required or permitted to be given or served
to or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the
Property Trustee to Bankers Trust Company, Four Albany Street, 4th Floor,
New York, NY 10006, Attention: Corporate Trust and Agency Group Corporate
Market Services; (b) with respect to the Delaware Trustee to Bankers Trust
(Delaware), 1001 Jefferson Street, Suite 550, Wilmington, DE 19801,
Attention: Ms. Lisa Wilkins; and (c) with respect to the Administrative
Trustees, to them at the address above for notices to the Depositor, marked
"Attention: Office of the Secretary". Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed
to have been sufficiently given or made only upon actual receipt of the
writing by the Trust or the Property Trustee.
SECTION 10.10 Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of
the Securityholders that, until at least one year and one day after the
Trust has been terminated in accordance with Article IX, they shall not
file, or join in the filing of, a petition against the Trust under any
bankruptcy, insolvency, reorganization or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor,
48
<PAGE>
it shall file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Depositor against the Trust or
the commencement of such action and raise the defense that the Depositor
has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the
Trustee or the Trust may assert. The provisions of this Section 10.9 shall
survive the termination of this Declaration of Trust.
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act.
This Declaration of Trust will not be qualified under the Trust
Indenture Act except upon the effectiveness of a registration statement and
the consummation of an exchange offer pursuant to the Registration Rights
Agreement. By its terms, however, this Declaration of Trust incorporates
certain provisions of the Trust Indenture Act. Upon the consummation of an
exchange offer pursuant to the Registration Rights Agreement, clauses (a),
(b), (c) and (d), below, shall apply to this Declaration of Trust.
(a) This Declaration of Trust is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration of
Trust and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
Declaration of Trust by any of the provisions of the Trust Indenture Act,
such required provision shall control. If any provision of this Declaration
of Trust modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed
to apply to this Declaration of Trust as so modified or excluded, as the
case may be.
(d) The application of the Trust Indenture Act to this Declaration
of Trust shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.12. Acceptance of Terms of Declaration of Trust,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS DECLARATION OF TRUST AND AGREEMENT TO THE SUBORDINATION PROVISIONS
AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE
THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE
TERMS AND PROVISIONS OF THIS DECLARATION OF TRUST SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND
SUCH OTHERS.
49
<PAGE>
REPUBLIC NEW YORK CORPORATION,
Depositor
By: /s/ Thomas F. Robards
Name: Thomas F. Robards
Title: Executive Vice President, Treasurer
and Chief Financial Officer
BANKERS TRUST COMPANY,
as Property Trustee
By: /s/ Jenna Kaufman
Name: Jenna Kaufman
Title: Vice President
BANKERS TRUST (DELAWARE),
as Delaware Trustee and not in its
individual capacity
By: /s/ M. Lisa Wilkins
Name: M. Lisa Wilkins
Title: Assistant Secretary
/s/ Thomas F. Robards
Thomas F. Robards,
as Administrative Trustee
/s/ Stephen Saali
Stephen Saali,
as Administrative Trustee
50
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST OF
REPUBLIC NEW YORK CAPITAL II
THIS CERTIFICATE OF TRUST of Republic New York Capital II (the "Trust"),
dated as of November 26, 1996, is being duly executed and filed by Bankers
Trust (Delaware), a Delaware banking corporation, as trustee, Thomas F.
Robards, an individual, as trustee and Stephen Saali, an individual, as
trustee to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is Republic New
York Capital II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
as follows: Bankers Trust (Delaware), 1001 Jefferson Street, Suite 550,
Wilmington, DE 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
4. Duration. The Trust created hereby shall terminate on December 3,
2050.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first written above.
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as trustee
By: __________________________
Name:
Title:
THOMAS F. ROBARDS, not in his individual
capacity but solely as trustee
--------------------------------
STEPHEN SAALI, not in his individual capacity but
solely as trustee
--------------------------------
51
<PAGE>
EXHIBIT B
IF TRANSFER OF THE CAPITAL SECURITY WILL BE RESTRICTED, INSERT ----
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(i) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ACQUIRING THE CAPITAL
SECURITIES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSITITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (ii) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
IF THE CAPITAL SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT--This
Capital Security is a Global Certificate within the meaning of the
Declaration of Trust hereinafter referred to and is registered in the name
of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Capital Security is exchangeable for Capital Securities
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration of Trust and
no transfer of this Capital Security (other than a transfer of this Capital
Security as a whole by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Capital Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York)
to Republic New York Capital II or its agent for registration of transfer,
exchange or payment, and any Capital Security issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon is
made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
The Capital Securities are issued, and may be transferred, only in blocks
having a Liquidation Amount of not less than $100,000. Any transfer, sale
or other disposition of 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 Capital Securities for any purpose, including but not limited to
the receipt of Distributions on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
<PAGE>
Certificate Number Number of Capital Securities
CUSIP NO. [ ]
Certificate Evidencing Capital Securities
of
Republic New York Capital II
[Name of Issue]
(Liquidation Amount $1,000 per Capital Security)
Republic New York Capital II, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede
& Co. (the "Holder") is the registered owner of _______ ( ) Capital
Securities of the Trust representing an undivided beneficial interest in
the assets of the Trust and designated Republic New York Capital II [Name
of issue] (Liquidation Amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer
as provided in Section 5.4 of the Declaration of Trust (as defined below).
The designations, rights, privileges, restrictions, preferences and other
terms and provisions of the Capital Securities are set forth in, and this
certificate and the Capital Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the
Amended and Restated Declaration of Trust of the Trust dated as of December
4, 1996, as the same may be amended from time to time (the "Declaration of
Trust") including the designation of the terms of Capital Securities as set
forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Republic New York Corporation, a corporation, and
Bankers Trust Company, as guarantee trustee, dated as of December 4, 1996,
(the "Guarantee"), to the extent provided therein. The Trust will furnish a
copy of the Declaration of Trust and the Guarantee to the Holder without
charge upon written request to the Trust at its principal place of business
or registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
IN WITNESS WEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of ________ , 199__.
Republic New York Capital II
By: _________________________
Name:
Administrative Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Transfer Agent and Registrar
BY:
Authorized Signatory
2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: _________
Signature: ____________________________________________________
(Sign exactly as your name appears on the other side
of this Capital Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion
program), pursuant to SEC Rule 17Ad-15.
3
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
Republic New York Capital II
________% Common Securities
(Liquidation Amount $1,000 per Common Security)
Republic New York Capital II, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
Republic New York Corporation (the "Holder") is the registered owner of
__________( ) common securities of the Trust representing beneficial
interests of the Trust and designated the _______% Common Securities
(Liquidation Amount $1,000 per Common Security) (the "Common Securities").
In accordance with Section 5.10 of the Declaration of Trust (as defined
below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of ____________, 199____, as the same may be amended
from time to time (the "Declaration of Trust") including the designation of
the terms of the Common Securities as set forth therein. The Trust will
furnish a copy of the Declaration of Trust to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ____ day of __________, 199__.
REPUBLIC NEW YORK CAPITAL II
By: ___________________________
Name:
Administrative Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Transfer Agent and Registrar
BY:
Authorized Signatory
4
<PAGE>
This Capital Security is a Global Certificate within the meaning of
the Declaration of Trust hereinafter referred to and is registered in the
name of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Capital Security is exchangeable for Capital Securities
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration of Trust and
no transfer of this Capital Security (other than a transfer of this Capital
Security as a whole by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Capital Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York)
to Republic New York Capital II or its agent for registration of transfer,
exchange or payment, and any Capital Security issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon is
made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
Certificate Number Number of Capital Securities
RNYCII - ____ __________
CUSIP NO. 76061P AA 8
Certificate Evidencing Capital Securities
of
Republic New York Capital II
7.53% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
Republic New York Capital II, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede
& Co. (the "Holder") is the registered owner of $_______________
Liquidation Amount 7.53% Capital Securities (__________ Capital Securities)
of the Trust representing an undivided beneficial interest in the assets of
the Trust and designated the Republic New York Capital II 7.53% Capital
Securities (Liquidation Amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer
as provided in Section 5.4 of the Declaration of Trust (as defined below).
The designations, rights, privileges, restrictions, preferences and other
terms and provisions of the Capital Securities are set forth in, and this
certificate and the Capital Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the
Amended and Restated Declaration of Trust of the Trust dated as of December
4, 1996, as the same may be amended from time to time (the "Declaration of
Trust") including the designation of the terms of Capital Securities as set
forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Republic New York Corporation, a corporation, and
Bankers Trust Company, as guarantee trustee, dated as of ______________,
1997, (the "Guarantee"), to the extent provided therein. The Trust will
furnish a copy of the Declaration of Trust and the Guarantee to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___________ day of ___________, 199_____.
Republic New York Capital II
By
----------------------------------
Name:
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Transfer Agent and Registrar
By:
----------------------------------
Authorized Signatory
<PAGE>
Reverse
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: _________
Signature: _______________________________________________________
(Sign exactly as your name appears on the other side of
this Capital Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant
to SEC Rule 17Ad-15.
The Capital Securities are issued, and may be transferred, only in blocks
having a Liquidation Amount of not less than $100,000. Any transfer, sale
or other disposition of 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 Capital Securities for any purpose, including but not limited to
the receipt of Distributions on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
REPUBLIC NEW YORK CORPORATION
7.53% Junior Subordinated Debt Securities due December 4, 2026
No. RNYC JSD ________ $_________________
REPUBLIC NEW YORK CORPORATION, a corporation organized and existing
under the laws of Maryland (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Republic New York
Capital II, or its registered assigns, the principal sum of $______________
(________________) on December 4, 2026. The Company further promises to pay
interest on said principal sum from __________________, or from the most
recent interest payment date (each such date, an "Interest Payment Date")
on which interest has been paid or duly provided for, semi-annually,
subject to deferral as set forth herein, in arrears on June 4 and December
4 of each year, commencing June 4, 1997, at the rate of 7.53% per annum,
until the principal hereof shall have become due and payable, plus
Additional Interest, if any, until the principal hereof is paid or duly
provided for or made available for payment and on any overdue principal and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
the rate of 7.53% per annum, compounded semi-annually as liquidated
damages. The amount of interest payable for any period shall be computed on
the basis of twelve 30-day months and a 360-day year. The amount of
interest payable for any partial period shall be computed on the basis of
the number of days elapsed in a 360-day year of twelve 30-day months. In
the event that any date on which interest is payable on this Security is
not a Business Day, then a payment of the interest 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 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 the payment was
originally payable. A "Business Day" shall mean any day other than (i) a
Saturday or Sunday, (ii) 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 (iii) a day on which the Corporate Trust Office of the Trustee,
or the Corporate Trust Office of the Property Trustee under the Declaration
of Trust hereinafter referred to for Republic New York Capital II is closed
for business. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date, as provided in the
Indenture, shall be paid to the Person in whose name this Security (or one
or more Predecessor Securities, as defined in the Indenture) is registered
at the close of business on the Regular Record Date for such interest
installment, which shall be the first day of the month in which an Interest
Payment Date occurs. Any such interest installment not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this Security,
from time to time, to defer payment of interest on such Security for up to
10 consecutive semi-annual interest payment periods with respect to each
deferral period (each an "Extension Period"), during which Extension
Periods the Company shall have the right to make partial payments of
interest on any Interest Payment Date, and at the end of which the Company
shall pay all interest then accrued and unpaid (together with Additional
Interest thereon to the extent
<PAGE>
permitted by applicable law); provided, however, that no Extension Period
may extend beyond the Maturity of this Security. During any such Extension
Period, the Company 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 Company's outstanding capital stock or (ii)
make any payment of principal of, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company including other
debt that ranks pari passu with or junior in interest to this Security or
(iii) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company (including
other guarantees) if such guarantee ranks pari passu with or junior in
interest to this Security (other than (a) dividends or distributions in
Common Stock of the Company, (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 Agreement (as defined in the Indenture), (d) purchases or
acquisitions of shares of the Company's Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plan or other contractual obligation of the Company (other than a
contractual obligation ranking pari passu with or junior to these
Securities, (e) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock,
or (f) the purchase of fractional interests in shares of the Company'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 such Extension Period, the Company may further extend
such Extension Period, provided, however, that such extension does not
cause such Extension Period to exceed 10 consecutive semi-annual interest
payment periods or extend beyond the Maturity of this Security. Upon the
termination of any such Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due, the
Company 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. The Company shall give the Holder of this
Security and the Trustee notice of its election to begin any Extension
Period at least five Business Days prior to the Interest Payment Date,
prior to the earlier of (i) the date the Distributions on the Capital
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 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 the Company may elect to begin an Extension Period.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in the United States, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the
Company payment of any interest may be made (except Securities in Global
form) (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Securities Register or (ii) by wire
transfer in immediately available funds at such place and to such account
as may be designated by the Person entitled thereto as specified in the
Securities Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take
such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact
for any and all such purposes.
<PAGE>
Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ___________, 199_____ REPUBLIC NEW YORK CORPORATION
[Seal] By:
Chairman and Chief Executive Officer
Attest:
Corporate Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES REFERRED TO IN THE WITHIN-MENTIONED INDENTURE.
BANKERS TRUST COMPANY, AS TRUSTEE
BY
AUTHORIZED SIGNATORY
<PAGE>
Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under a Junior Subordinated Indenture, dated as of November 27,
1996, as supplemented by an Officers' Certificate dated as of December 4,
1996 (herein called the "Indenture"), between the Company and Bankers Trust
Company, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated
on the face hereof, limited in aggregate principal amount to
$___________________.
All terms used in this Security that are defined in the Indenture and
in the Amended and Restated Declaration of Trust of Republic New York
Capital II, dated as of December 4, 1996, as amended (the "Declaration of
Trust"), among Republic New York Corporation, as Depositor, and the
Trustees named therein, shall have the meanings assigned to them in the
Indenture or the Declaration of Trust, as the case may be.
On or after December 4, 2006, the Company may at any time, at its
option, subject to the terms and conditions of Article XI of the Indenture
and subject to the Company having received prior approval of the Federal
Reserve if then required under applicable capital guidelines of the Federal
Reserve, redeem this Security in whole or in part at any time or from time
to time prior to maturity, at a redemption price (the "Optional Repayment
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 December 4:
<TABLE>
<CAPTION>
Redemption
Year Price
<C> <C>
2006 . . . . . . . . . . . . . . . . . . . . . . . . . 103.765%
2007 . . . . . . . . . . . . . . . . . . . . . . . . . 103.389
2008 . . . . . . . . . . . . . . . . . . . . . . . . . 103.01
2009 . . . . . . . . . . . . . . . . . . . . . . . . . 102.6355
2010 . . . . . . . . . . . . . . . . . . . . . . . . . 102.259
2011 . . . . . . . . . . . . . . . . . . . . . . . . . 101.8825
2012 . . . . . . . . . . . . . . . . . . . . . . . . . 101.506
2013 . . . . . . . . . . . . . . . . . . . . . . . . . 101.1295
2014 . . . . . . . . . . . . . . . . . . . . . . . . . 100.753
2015 . . . . . . . . . . . . . . . . . . . . . . . . . 100.3765
</TABLE>
and at 100% on or after December 4, 2016.
If a Tax Event in respect of Republic New York Capital II shall occur
and be continuing, the Company may, at its option and subject to receipt of
prior approval of the Board of Governors of the Federal Reserve System (the
"Federal Reserve") if then required under applicable capital guidelines or
policies of the Federal Reserve, terminate the Trust 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 Securities in
whole (but not in part) at a prepayment price equal to 100% of the
principal amount of such Securities plus accrued interest thereon to the
date of prepayment.
<PAGE>
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation
hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of this Security may be declared due
and payable in the manner, with the effect and subject to the conditions
provided in the Indenture and in the Declaration of Trust .
The Indenture permits, with certain exceptions as therein provided,
the Company and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the
rights and obligations of the Company and of the Holders of the Securities,
with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series to be affected by such
supplemental indenture. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series may declare the principal amount of
all the Securities of this series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders),
provided, however, that, in the case of the Securities of this series
issued to a Republic New York Trust, if upon an Event of Default, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series fails to declare the principal of all
the Securities of this series to be immediately due and payable, the
holders of at least 25% in aggregate Liquidation Amount of the
corresponding series of Capital Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee. The Holders of
a majority in aggregate principal amount of the Outstanding Securities of
these Securities may annul such declaration and waive the default if the
default (other than the non-payment of the principal of these 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 Trustee. Should
the Holders of these 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. Upon any such declaration
such specified amount of and the accrued interest (including any Additional
Interest) on all the Securities of this series shall become immediately due
and payable, provided that the payment of principal and interest (including
any Additional Interest) on such Securities shall remain subordinated to
the extent provided in Article XIV of the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium,
if any) and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
<PAGE>
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained pursuant to
Section 10.2 of the Indenture duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Securities Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing and thereupon one or more new Securities of this
series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of such series of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security intend that such Security constitutes
indebtedness and agree to treat such Security as indebtedness for United
States Federal, state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
GUARANTEE AGREEMENT
Between
REPUBLIC NEW YORK CORPORATION
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
dated as of
December 4, 1996
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act 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.
i
<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 .......... 5
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 ............................ 6
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE ........ 6
Section 3.1. Powers and Duties of the Guarantee Trustee ....... 6
Section 3.2. Certain Rights of Guarantee Trustee .......... 7
Section 3.3. Indemnity .................................... 8
Section 3.4. Expenses .................................... 9
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 ................... 12
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 .................................... 13
Section 8.3. Notices .................................... 13
Section 8.4. Benefit .................................... 14
Section 8.5. Interpretation ............................ 14
Section 8.6. Governing Law ............................ 14
ii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of December 4, 1996, 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 December 4, 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 is issuing $200,000,000 aggregate Liquidation Amount
of its 7.53% Capital Securities, Liquidation Amount $1,000 per security
(the "Capital Securities") and $6,186,000 of aggregate liquidation
preference of Common Securities, liquidation preference $1,000 per security
(the "Common Securities" and collectively with the Capital Securities, 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;
WHEREAS, the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Junior Subordinated Debt
Securities due December 4, 2026 (as defined in the Declaration of Trust)
(the "Junior Subordinated Debt Securities") of the Guarantor which will be
deposited with Bankers Trust Company, as Property Trustee under the
Declaration of Trust, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Trust Securities
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 consideration of the purchase by each Holder of
Trust Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, 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
1
<PAGE>
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 first
recital of this Guarantee Agreement, and shall include any Exchange Capital
Securities as defined in the Indenture.
"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 Company 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 December 4, 1996, executed by the Company, 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
Payments, 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.
"Guarnator" shall have the meaning specified in the first recital
of this Guarantee Agreement.
2
<PAGE>
"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, as supplemented and amended between the Guarantor and
Bankers Trust Company, as trustee.
"Issuer" shall have the meaning specified in the first recital of
this Guarantee Agreement.
"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 Trustee means
any officer 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 Trustee
customarily performing functions similar to those performed by any of the
above designated officers and having direct responsibility for the
administration of this Indenture, 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
3
<PAGE>
Company 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
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
Securities or to other Debt which is pari passu with, or subordinated to,
the Securities; provided, however, that Senior Debt shall not be deemed to
include (a) any Debt of the Company 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 Company,
(b) any Debt of the Company to any of its Subsidiaries, (c) any Debt to any
employee of the Company, (d) any 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 this Indenture, and (f) this
Guarantee.
"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 will not be qualified under the Trust
Indenture Act except upon the effectiveness of a registration statement and
the consummation of an exchange offer pursuant to a registration rights
agreement as contemplated in Article XII of the Indenture.
(b) Upon qualification under the Trust Indenture Act as
contemplated in clause (a) above, 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 December 4 and June 4 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
4
<PAGE>
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, if any, 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, notices 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.
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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
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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
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<PAGE>
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
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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.
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 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
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 instrument in
writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
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(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, 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;
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(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, 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.
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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.
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 I, Republic New York
Capital III and Republic New York Capital IV.
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.
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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.
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 II 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
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(d) if given to any Holder, at the address set forth on the books
andrecords 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 inSection 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.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
REPUBLIC NEW YORK CORPORATION
By: /s/ Thomas F. Robards
Name: Thomas F. Robards
Title: Executive Vice President
BANKERS TRUST COMPANY,
as Guarantee Trustee
By: /s/ Jenna Kaufman
Name: Jenna Kaufman
Title: Vice President
15
REPUBLIC NEW YORK CAPITAL II
$200,000,000
7.53% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
REPUBLIC NEW YORK CORPORATION
REGISTRATION AGREEMENT
New York, New York
December 4, 1996
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Dear Sirs:
Republic New York Capital II, a Delaware statutory
business trust (the "Trust"), and Republic New York
Corporation, a Maryland corporation (the "Company"), as
guarantor, propose to issue and sell to Deutsche Morgan
Grenfell (the "Purchaser"), upon the terms set forth in a
purchase agreement of even date herewith (the "Purchase
Agreement"), 200,000 of the Trust's 7.53% Capital
Securities, liquidation amount $1,000 per Capital Security
(the "Capital Securities" and together with the guarantee by
the Company of the payment of the Capital Securities to the
extent set forth in the Guarantee, the "Pass-through
Securities") (the "Initial Placement"). The proceeds of the
sale by the Trust of the Pass-through Securities and its
7.53% Common Securities, liquidation amount $1,000 per
Common Security (the "Common Securities"), are to be
invested in the 7.53% Junior Subordinated Debt Securities of
the Company having an aggregate principal amount equal to
the aggregate liquidation amount of the Capital Securities
and the Common Securities (the "Junior Subordinated Debt
Securities"). As an inducement to the Purchaser to enter
into the Purchase Agreement and in satisfaction of a
condition to your obligations thereunder, the Trust and the
<PAGE>
2
Company agree with you, (i) for your benefit and (ii) for
the benefit of the holders from time to time (each of the
foregoing a "Holder" and together the "Holders") of the
Securities (as defined herein) or the Exchange Securities
(as defined herein), as follows:
1. Definitions. Capitalized terms used herein
without definition shall have their respective meanings set
forth in the Purchase Agreement. As used in this Agreement,
the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
"Additional Distributions" has the meaning given
such term in Section 7(a) hereof.
"Additional Interest" has the meaning given such
term in Section 7(a) hereof.
"Affiliate" of any specified person means any
other person which, directly or indirectly, is in control
of, is controlled by, or is under common control with, such
specified person.
"Capital Securities" has the meaning set forth in
the preamble hereto.
"Closing Date" has the meaning given such term in
the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning set forth in
the preamble hereto.
"Declaration" means the Amended and Restated
Declaration of Trust relating to the Capital Securities and
the Exchange Capital Securities dated as of December 4,
1996, among the Company, as Depositor, Thomas F. Robards and
Stephen Saali, as administrative trustees, the Property
Trustee and Bankers Trust (Delaware), a Delaware
corporation, as Delaware trustee, as the same may be amended
from time to time in accordance with the terms thereof.
<PAGE>
3
"Distribution Event" shall mean the distribution
of Junior Subordinated Debt Securities or Exchange Junior
Subordinated Debt Securities, as the case may be, to the
holders of Capital Securities or Exchange Capital
Securities, as the case may be, as provided in the
Declaration.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.
"Exchange Capital Securities" means securities of
the Trust to be issued under the Declaration and which are
identical in all material respects to the Capital Securities
(except that the distribution rate step-up provisions and
the transfer restrictions will be modified or eliminated,
as appropriate).
"Exchange Guarantee" means the guarantee by the
Company of the Exchange Capital Securities, identical in all
material respects to the Guarantee.
"Exchange Junior Subordinated Debt Securities"
means debt securities of the Company to be issued under the
Junior Subordinated Indenture and which are identical in all
material respects to the Junior Subordinated Debt Securities
(except that the interest rate step-up provisions and the
transfer restrictions will be modified or eliminated, as
appropriate).
"Exchange Offer Registration Period" means the
180-day period following the consummation of the Registered
Exchange Offer, exclusive of any period during which any
stop order shall be in effect suspending the effectiveness
of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a
registration statement of the Trust and the Company on an
appropriate form under the Act with respect to the
Registered Exchange Offer (and, if a Distribution Event
shall not have occurred prior to the effectiveness of such
Exchange Offer Registration Statement and the Company shall
not have elected to include the Junior Subordinated Debt
Securities held by the Trust in the Registered Exchange
Offer pursuant to Section 2(g) hereof, with respect to the
distribution of the Junior Subordinated Debt Securities upon
the occurrence of a Distribution Event), and all amendments
and supplements to such registration statement, including
<PAGE>
4
post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Pass-through Securities" means the
Exchange Capital Securities together with the Exchange
Guarantee.
"Exchange Securities" means (i) if a Distribution
Event shall not have occurred prior to the Registered
Exchange Offer, (a) the Exchange Pass-through Securities and
(b) if the Company shall elect to include the Junior
Subordinated Debt Securities held by the Trust in the
Registered Exchange Offer pursuant to Section 2(g) hereof,
the Exchange Junior Subordinated Debt Securities or (ii) if
a Distribution Event shall have occurred prior to the
Registered Exchange Offer, the Exchange Junior Subordinated
Debt Securities.
"Exchanging Dealer" means any Holder (which may
include the Purchaser) which is a broker-dealer electing to
exchange Securities acquired for its own account as a result
of market-making activities or other trading activities for
Exchange Securities.
"Final Memorandum" has the meaning set forth in
the Purchase Agreement.
"Guarantee" means the guarantee by the Company of
the Capital Securities and the Common Securities pursuant to
the Guarantee Agreement dated as of December 4, 1996 between
the Company and the Guarantee Trustee.
"Guarantee Trustee", "Indenture Trustee" and
"Property Trustee" each means Bankers Trust Company, a
New York banking corporation.
"Holder" has the meaning set forth in the preamble
hereto.
"Initial Placement" has the meaning set forth in
the preamble hereto.
"Junior Subordinated Debt Securities" has the
meaning set forth in the preamble hereto.
"Junior Subordinated Indenture" means the Junior
Subordinated Indenture relating to the Junior Subordinated
<PAGE>
5
Debt Securities and the Exchange Junior Subordinated Debt
Securities dated as of November 27, 1996 between the Company
and the Indenture Trustee.
"Majority Holders" means (i) if no Distribution
Event has occurred, the Holders of a majority of the
aggregate liquidation amount of securities registered under
a Registration Statement and (ii) if a Distribution Event
has occurred, the Holders of a majority of the aggregate
principal amount of securities registered under the
Registration Statement.
"Managing Underwriters" means the investment
banker or investment bankers and manager or managers that
shall administer an underwritten offering.
"Pass-through Securities" has the meaning set
forth in the preamble hereto.
"Prospectus" means the prospectus included in any
Registration Statement (including a prospectus that
discloses information previously omitted from a prospectus
filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Securities
or the Exchange Securities, covered by such Registration
Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in
the preamble hereto.
"Purchaser" has the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" means the proposed
offer to the Holders to issue and deliver to such Holders a
like liquidation amount or principal amount, as the case may
be, of the Exchange Securities, in exchange for (i) if a
Distribution Event shall not have occurred, (a) the
Pass-Through Securities and (b) if the Company shall elect
to include the Junior Subordinated Debt Securities held by
the Trust in the Registered Exchange Offer pursuant to
Section 2(g) hereof, the Junior Subordinated Debt Securities
or (ii) if a Distribution Event shall have occurred, the
Junior Subordinated Debt Securities.
<PAGE>
6
"Registration Default" has the meaning given such
term in Section 7(a) hereof.
"Registration Statement" means any Exchange Offer
Registration Statement or Shelf Registration Statement that
covers any of the Securities or the Exchange Securities
pursuant to the provisions of this Agreement, and amendments
and supplements to such registration statement, including
post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Securities" means (i) if a Distribution Event
shall not have occurred, the Pass-through Securities and the
Junior Subordinated Debt Securities or (ii) if a
Distribution Event shall have occurred, the Junior
Subordinated Debt Securities.
"Shelf Registration" means a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning given
such term in Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf"
registration statement of the Trust and the Company pursuant
to the provisions of Section 3 hereof which covers some or
all of the Securities or the Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the
Commission, and amendments and supplements to such
registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
"Tax Contingency" has the meaning given such term
in Section 2(b) hereof.
"Tax Contingency Extension" has the meaning given
such term in Section 7(a) hereof.
"Trust" has the meaning set forth in the preamble
hereto.
"Trustee" means the Guarantee Trustee, the
Indenture Trustee or the Property Trustee, as applicable.
<PAGE>
7
"underwriter" means any underwriter of Securities
in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer; Resales of Exchange
Securities by Exchanging Dealers. (a) The Trust and the
Company shall prepare and, not later than 60 days following
the Closing Date, shall file with the Commission the
Exchange Offer Registration Statement. The Trust and the
Company shall use their best efforts to cause the Exchange
Offer Registration Statement to become effective under the
Act within 150 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Trust and the Company shall
pormptly commence the Registered Exchange Offer, it being
the objective of such Registered Exchange Offer to enable
each Holder electing to exchange Securities for Exchange
Securities (assuming that such Holder is not an affiliate of
the Trust or the Company within the meaning of the Act,
acquires the Exchange Securities in the ordinary course of
such Holder's business and has no arrangements with any
person to participate in the distribution (within the
meaning of the Act) of the Exchange Securities) to transfer
such Exchange Securities from and after their receipt
without any limitations or restricitons under the Act and
without material restriciions under the securities laws of a
substantial proportion of the several states of the United
States. Notwithstanding the foregoing (but subject to the
provisions of clause (ii) of Section 3 and clause (a)(iii)
of Section 7), in the event that the Company shall determine
that, or (ii) a material uncertainty exists as to whether,
consummation of the Registered Exchange Offer would result
in an adverse tax consequence to the Company (a "Tax
Contingency"), the Trust and the Company may elect to delay
commencement or consummation of the Registered Exchange
Offer until such Tax Contingency shall no longer exist or,
if the Company shall determine in good faith that such Tax
Contingency is in existence on the 240th day following the
Closing Date, to terminate the Registered Exchange Offer.
(c) In connection with the Registered Exchange
Offer, the Trust and the Company shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration
<PAGE>
8
Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Registered Exchange Offer open
for not less than 30 days after the date notice thereof is
mailed to the Holders (or longer if required by
applicable law);
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in
the Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Trust and the Company shall:
(i) accept for exchange all Securities tendered
and not validly withdrawn pursuant to the Registered
Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of tendered Securities, Exchange
Securities equal in liquidation amount or principal
amount, as the case may be, to the Securities of such
Holder so accepted for exchange therefor.
(e) The Purchaser and the Trust and the Company
acknowledge that, pursuant to interpretations by the
Commission's staff of Section 5 of the Act, and in the
absence of an applicable exemption therefrom, each
Exchanging Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Securities received
by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Securities acquired [for its
own account] as a result of market-making activities or
other trading activities. Accordingly, the Trust and the
Company shall:
(i) include the information set forth in Annex A
hereto on the cover of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section
setting forth details of the Registered Exchange Offer,
<PAGE>
9
and in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part
of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange
Offer Registration Statement continuously effective
under the Act during the Exchange Offer Registration
Period for delivery of the Prospectus forming a part
thereof by Exchanging Dealers in connection with sales
of Exchange Securities received pursuant to the
Registered Exchange Offer, as contemplated by
Section 4(h) below.
(f) In the event that the Purchaser determines
that it is not eligible to participate in the Registered
Exchange Offer with respect to the exchange of Securities
constituting any portion of its initial unsold allotment of
Securities, at the request of the Purchaser, the Company
shall issue and deliver to the Purchaser, in exchange for
such Securities, a like principal amount of Exchange
Securities (provided that such Exchange Securities shall
include legends with respect to restrictions on transfer).
The Trust and the Company shall seek to cause the CUSIP
Service Bureau to issue the same CUSIP number for such
Exchange Securities as for Exchange Securities issued
pursuant to the Registered Exchange Offer. The Purchaser
agrees to promptly notify the Company in writing following
the resale of its initial allotment of Securities.
(g) Notwithstanding anything in this Agreement to
the contrary, if a Distribution Event shall not have
occurred prior to the Registered Exchange Offer, the Company
may offer to, and the Trust shall agree to, exchange the
Junior Subordinated Debt Securities held by the Trust for an
identical principal amount of Exchange Junior Subordinated
Debt Securities as part of the Registered Exchange Offer;
provided, however, that, until a Distribution Event shall
have occurred, such Exchange Junior Subordinated Debt
Securities shall include appropriate legends with respect to
transfer restrictions.
3. Shelf Registration. If (i) because of any
change in law or applicable interpretations thereof by the
Commission's staff, the Trust and the Company determine upon
advice of their outside counsel that they are not permitted
<PAGE>
10
to effect the Registered Exchange Offer as contemplated by
Section 2 hereof or (ii) for any other reason the Registered
Exchange Offer is not consummated within 180 days (or, if
the Company shall determine in good faith that a Tax
Contingency exists on such 180th day, within 240 days) of
the Closing Date, or (iii) the Purchaser so requests with
respect to Securities held by it following consummation of
the Registered Exchange Offer, or (iv) any Holder at the
time of the Registered Exchange Offer (other than the
Purchaser) is not eligible to participate in the Registered
Exchange Offer or (v) in the event that the Purchaser
participates in the Registered Exchange Offer or acquires
Exchange Securities pursuant to Section 2(f) hereof and the
Purchaser does not receive freely tradeable Exchange
Securities in exchange for Securities constituting any
portion of an unsold allotment (it being understood that,
for purposes of this Section 3, (x) the requirement that the
Purchaser deliver a Prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the
Act in connection with sales of Exchange Securities acquired
in exchange for such Securities shall result in such
Exchange Securities being not "freely tradeable" but (y) the
requirement that an Exchanging Dealer deliver a Prospectus
in connection with sales of Exchange Securities acquired in
the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other
trading activities shall not result in such Exchange
Securities being not "freely tradeable"), the following
provisions shall apply:
(a) The Trust and the Company shall, as promptly
as practicable (but in no event more than 60 days after so
required or requested pursuant to this Section 3), file with
the Commission and thereafter use their best efforts to
cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the
Securities or the Exchange Securities, as applicable, by the
applicable Holders from time to time in accordance with the
methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided,
however, that with respect to Exchange Securities received
by the Purchaser in exchange for Securities constituting any
portion of an unsold allotment, the Trust and the Company
may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the
Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508,
as applicable, in satisfaction of their obligations under
<PAGE>
11
this paragraph (a) with respect thereto, and any such
Exchange Offer Registration Statement, as so amended, shall
be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement.
(b) The Trust and the Company shall use their
best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus
forming part thereof to be usable by the applicable Holders
for a period of three years (or, if Rule 144(k) is amended
to provide a shorter restrictive period, such shorter
period) from the Closing Date or such shorter period that
will terminate when all the Securities or Exchange
Securities, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the
"Shelf Registration Period").
4. Registration Procedures. In connection with
any Shelf Registration Statement and, to the extent
specified, any Exchange Offer Registration Statement, the
following provisions shall apply:
(a) The Trust and the Company shall furnish to
the Purchaser, prior to the filing thereof with the
Commission, a copy of any Shelf Registration Statement
and any Exchange Offer Registration Statement, and each
amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein and shall use
their best efforts to reflect in each such document,
when so filed with the Commission, such comments as you
reasonably may propose.
(b) The Trust and the Company shall ensure that
(i) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all
material respects with the Act and the rules and
regulations thereunder, (ii) any Registration Statement
and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming
part of any Registration Statement, and any amendment
or supplement to such Prospectus, does not, during the
period when delivery thereof is required, include an
untrue statement of a material fact or omit to state a
<PAGE>
12
material fact necessary in order to make the
statements, in the light of the circumstances under
which they were made, not misleading.
(c) (1) The Trust and the Company shall advise
the Purchaser and, in the case of a Shelf Registration
Statement, the Holders of securities covered thereby,
and, if requested by you or any such Holder, confirm
such advice in writing:
(i) when a Registration Statement and any
amendment thereto has been filed with the
Commission and when the Registration Statement or
any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for
amendments or supplements to the Registration
Statement or the Prospectus included therein or
for additional information.
(2) The Trust and the Company shall advise the
Purchaser and, in the case of a Shelf Registration
Statement, the Holders of securities covered thereby,
and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer which has provided in
writing to the Trust and the Company a telephone or
facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging D
ealer, confirm such advice in writing:
(i) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Company or the
Trust of any notification with respect to the
suspension of the qualification of the securities
included therein for sale in any jurisdiction or
the initiation or threatening of any proceeding
for such purpose; and
(iii) of the happening, during the period when
delivery of a Prospectus is required, of any event
that requires the making of any changes in the
Registration Statement or the Prospectus so that,
as of such date, the statements therein are not
<PAGE>
13
misleading and do not omit to state a material
fact required to be stated therein or necessary to
make the statements therein (in the case of the
Prospectus, in light of the circumstances under
which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend
the use of the Prospectus until the requisite
changes have been made).
(d) The Trust and the Company shall use their
best efforts to obtain the withdrawal of any order
suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to
each Holder of securities included within the coverage
of any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and
any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder
so requests in writing, all exhibits (including those
incorporated by reference).
(f) The Trust and the Company shall, during the
Shelf Registration Period, deliver to each Holder of
securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies
of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Trust and
the Company consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the
securities covered by the Prospectus or any amendment
or supplement thereto.
(g) The Trust and the Company shall furnish to
each Exchanging Dealer which so requests, without
charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment
thereto, including financial statements and schedules,
any documents incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all
exhibits thereto (including those incorporated by
reference).
<PAGE>
14
(h) The Trust and the Company shall, during the
Exchange Offer Registration Period, promptly deliver to
each Exchanging Dealer, without charge, as many copies
of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in
connection with a sale of Exchange Securities received
by it pursuant to the Registered Exchange Offer; and
the Trust and the Company consent to the use of the
Prospectus or any amendment or supplement thereto by
any such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any
other offering of securities pursuant to any
Registration Statement, the Trust and the Company
shall, if required by applicable law, register or
qualify or cooperate with the Holders of securities
included therein and their respective counsel in
connection with the registration or qualification of
such securities for offer and sale under the securities
or blue sky laws of such jurisdictions as any such
Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the
securities covered by such Registration Statement;
provided, however, that neither the Trust nor the
Company will be required to qualify generally to do
business in any jurisdiction where it is not then so
qualified or to take any action which would subject it
to general service of process or to taxation in any
such jurisdiction where it is not then so subject.
(j) Unless the applicable securities shall be in
book-entry only form, the Trust and the Company shall
cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing
the securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such
denominations and registered in such names as Holders
may request prior to sales of securities pursuant to
such Registration Statement.
(k) Upon the occurrence of any event contemplated
by paragraphs c(1)(ii) or (c)(2)(iii) above, the Trust
and the Company shall promptly prepare a post-effective
amendment to any Registration Statement or an amendment
or supplement to the related Prospectus or file any
<PAGE>
15
other required document so that, as thereafter
delivered to purchasers of the securities included
therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any
material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading.
(l) The Trust and the Company shall use their
best efforts to cause The Depository Trust Company
("DTC") on the first business day following the
effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove
(i) from any existing CUSIP number assigned to the
Pass-through Securities and/or Junior Subordinated Debt
Securities, as the case may be, any designation
indicating that such securities are "restricted
securities", which efforts shall include delivery to
DTC of a letter executed by the Trust and the Company
substantially in the form of Annex E hereto and
(ii) any other stop or restriction on DTC's system with
respect to such securities. In the event the Trust and
the Company are unable to cause DTC to take the actions
described in the immediately preceding sentence, the
Company shall take such actions as Deutsche Morgan
Grenfell Inc. may reasonably request to provide, as
soon as practicable, a CUSIP number for the Pass-
through Securities and/or Junior Subordinated Debt
Securities, as the case may be, registered under such
Registration Statement and to cause such CUSIP number
to be assigned to such securities (or to the maximum
aggregate principal amount of such securities to which
such number may be assigned). Upon compliance with the
foregoing requirements of this Section 4(l), the Trust
and the Company shall provide the Trustee with printed
certificates for such securities, in a form eligible
for deposit with DTC.
(m) The Trust and the Company shall use their
best efforts to comply with all applicable rules and
regulations of the Commission and shall make generally
available to its security holders as soon as
practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Trust and the Company shall cause the
Junior Subordinated Indenture, the Declaration and the
<PAGE>
16
Guarantee to be qualified under the Trust Indenture Act
in a timely manner.
(o) The Trust and the Company may require each
Holder of securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Trust and the
Company such information regarding such Holder and the
distribution of such securities by such Holder as the
Trust and the Company may from time to time reasonably
require for inclusion in such Registration Statement.
(p) The Trust and the Company shall, if
requested, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf
Registration Statement, such information as the
Managing Underwriters and Majority Holders reasonably
agree should be included therein and shall make all
required filings of such Prospectus supplement or post-
effective amendment as soon as notified of the matters
to be incorporated in such Prospectus supplement or
post-effective amendment.
(q) In the case of any Shelf Registration
Statement, the Trust and the Company shall enter into
such agreements (including underwriting agreements) and
take all other appropriate actions in order to expedite
or facilitate the registration or the disposition of
the Securities or the Exchange Securities, as the case
may be, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain
indemnification provisions and procedures no less
favorable than those set forth in Section 6 (or such
other provisions and procedures acceptable to the
Majority Holders and the Managing Underwriters, if any)
with respect to all parties to be indemnified pursuant
to Section 6.
(r) In the case of any Shelf Registration
Statement, the Trust and the Company shall (i) make
reasonably available for inspection by the Holders of
securities to be registered thereunder, any underwriter
participating in any distribution pursuant to such
Registration Statement, and any attorney, accountant or
other agent retained by such Holders or any such
underwriter all relevant financial and other records,
pertinent corporate documents and properties of the
Trust or the Company and its subsidiaries as shall
reasonably be required in connection with the discharge
<PAGE>
17
of their due diligence obligations; (ii) cause the
Company's officers, directors and employees and any
relevant Trustee to supply at the Company's expense all
relevant information reasonably requested by such
Holders or any such underwriter, attorney, accountant
or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations; provided, however, that, in the case of
clause (i) and (ii) above, any information that is
designated in writing by the Trust or the Company, in
good faith, as confidential at the time of delivery of
such information shall be kept confidential by such
Holders and any such underwriter, attorney, accountant
or agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such
information becomes available to the public generally
or through a third party without an accompanying
obligation of confidentiality; and provided further,
however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Holders
and the other parties entitled thereto by one counsel
designated by and on behalf of such Holders and other
parties; (iii) make such representations and warranties
to the Holders of securities registered thereunder and
the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in
primary underwritten offerings and covering such
matters as are customarily covered in representations
and warranties requested in primary underwritten
offerings; (iv) obtain opinions of counsel to the Trust
and the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters,
if any) addressed to each selling Holder and the
underwriters, if any, covering such matters and with
such exceptions as are customarily covered or taken in
opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such
Holders and underwriters (it being agreed that the
matters to be covered by such counsel shall include,
without limitation, as of the date of the opinions and
as of the effective date of the Registration Statement
or most recent post-effective amendment thereto, as the
case may be, a statement by such counsel regarding the
absence from such Registration Statement and the
Prospectus included therein, as then amended or
supplemented, including the documents incorporated by
reference therein, of an untrue statement of a material
<PAGE>
18
fact or the omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading); (v) obtain "cold
comfort" letters and updates thereof from the
independent certified public accountants of the Company
(and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or
of any business acquired by the Company for which
financial statements and financial data are, or are
required to be, included in the Registration
Statement), addressed to each selling Holder of
securities registered thereunder and the underwriters,
if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to
evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the Trust
and the Company. The foregoing actions set forth in
clauses (iii), (iv), (v) and (vi) of this Section 4(r)
shall be performed at (A) the effectiveness of such
Registration Statement and each post-effective
amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent
required thereunder.
(s) In the case of any Exchange Offer
Registration Statement, if requested by the Purchaser,
the Trust and the Company shall (i) make reasonably
available for inspection by the Purchaser, and any
attorney, accountant or other agent retained by
Purchaser, all relevant financial and other records,
pertinent corporate documents and properties of the
Company and its subsidiaries or the Trust as shall
reasonably be required in connection with the discharge
of their due diligence obligations; (ii) cause the
Company's officers, directors and employees and any
relevant Trustee to supply at the Company's expense all
relevant information reasonably requested by the
Purchaser or any such attorney, accountant or agent in
connection with any such Registration Statement as is
customary for similar due diligence examinations;
provided, however, that, in the case of clause (i)
and (ii) above, any information that is designated in
writing by the Company or the Trust, in good faith, as
<PAGE>
19
confidential at the time of delivery of such
information shall be kept confidential by the Purchaser
and any such attorney, accountant or agent, unless such
disclosure is made in connection with a court
proceeding or required by law, or such information
becomes available to the public generally or through a
third party without an accompanying obligation of
confidentiality; (iii) make such representations and
warranties to the Purchaser, in form, substance and
scope as are customarily made by issuers to
underwriters in primary underwritten offerings and
covering such matters as are customarily covered in
representations and warranties requested in primary
underwritten offerings; (iv) obtain opinions of counsel
to the Trust and the Company and updates thereof (which
counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Purchaser
and its counsel) addressed to the Purchaser, covering such
matters as are customarily covered in opinions
requested in underwritten offerings and such other
matters as may be reasonably requested by the Purchaser
or its counsel (it being agreed that the matters to be
covered by such counsel shall include, without
limitation, as of the date of the opinions and as of
the effective date of the Registration Statement or
most recent post-effective amendment thereto, as the
case may be, a statement by such counsel regarding the
absence from such Registration Statement and the
Prospectus included therein, as then amended or
supplemented, including the documents incorporated by
reference therein, of an untrue statement of a material
fact or the omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading); (v) obtain "cold
comfort" letters and updates thereof from the
independent certified public accountants of the Company
(and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or
of any business acquired by the Company for which
financial statements and financial data are, or are
required to be, included in the Registration
Statement), addressed to the Purchaser, in customary
form and covering matters of the type customarily
covered in "cold comfort" letters in connection with
primary underwritten offerings, or if requested by the
Purchaser or its counsel in lieu of a "cold comfort"
letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering
<PAGE>
20
matters requested by the Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Purchaser or its counsel,
including those to evidence compliance with Section
4(k) and with conditions customarily contained in
underwriting agreements. The foregoing actions set
forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(s) shall be performed, if requested by the
Purchaser, at the closing of the Registered Exchange
Offer and the effective date of any post-effective
amendment to the Exchange Offer Registration Statement.
5. Registration Expenses. The Trust and the
Company shall bear all expenses incurred in connection with
the performance of their obligations under Sections 2, 3 and
4 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders of securities
registered thereunder for the reasonable fees and
disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for such Holders in
connection therewith, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Purchaser for the
reasonable fees and disbursements of counsel acting in
connection therewith.
6. Indemnification and Contribution. (a) In
connection with any Registration Statement, the Company
agrees to indemnify and hold harmless each Holder of
securities covered thereby (including the Purchaser and,
with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors,
officers, employees and agents of each such Holder and each
person who controls any such Holder within the meaning of
either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed
or in any amendment thereof, or in any preliminary
Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse
<PAGE>
21
each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the
Company will not be liable in any case to the extent that
any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Trust and the Company by or on behalf of
any such Holder specifically for inclusion therein and
(ii) such indemnity with respect to any untrue statement or
omission in any preliminary Prospectus relating to a Shelf
Registration Statement shall not inure to the benefit of any
Holder from whom the person asserting any such loss, claim,
damage or liability purchased the securities that are the
subject thereof, to the extent that any such loss, claim,
damage or liability of such Holder occurs under the
circumstances where it shall have been determined by a court
of competent jurisdiction by final and nonappealable
judgment that (w) the Trust and the Company had previously
furnished copies of the final Prospectus to such Holder,
(x) delivery of the final Prospectus was required by the Act
to be made to such person, (y) the untrue statement or
omission of a material fact contained in the preliminary
Prospectus was completely corrected in the final Prospectus
and (z) there was not sent or given to such person, at or
prior to the written confirmation of the sale of such
securities to such person, a copy of the final Prospectus.
This indemnity agreement will be in addition to any
liability which the Trust and the Company may otherwise
have.
The Company also agrees to indemnify or contribute
to Losses (as defined below) of, as provided in Section
6(d), any underwriters of securities registered under a
Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on
substantially the same basis as that of the indemnification
of the Purchaser and the selling Holders provided in this
Section 6(a) and shall, if requested by any underwriter,
enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a
Registration Statement (including the Purchaser and, with
respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer) severally
<PAGE>
22
agrees to indemnify and hold harmless (i) the Trust and the
Company, (ii) each of the Company's directors, (iii) each of
the Company's officers or any Trustee who signs such
Registration Statement and (iv) each person who controls the
Company or the Trust within the meaning of either the Act or
the Exchange Act to the same extent as the foregoing
indemnity from the Company to each such Holder, but only
with reference to written information relating to such
Holder furnished to the Trust or the Company by or on behalf
of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
such Holder may otherwise have.
(c) Promptly after receipt by an indemnified
party under this Section 6 of notice of the commencement of
any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in
writing of the commencement thereof; but the failure so to
notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above or paragraph (d)
below unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other
than obligations provided under this Section 6. The
indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for
which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the
indemnified party shall have the right to employ separate
counsel (including local counsel) (it being understood that
the indemnifying party shall not be liable for the fees,
costs and expenses of more than one separate counsel (and,
to the extent necessary, one local counsel in each
jurisdiction)), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel
(and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would
<PAGE>
23
present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such
action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are
different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 6 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and
several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with
investigating or defending the same) (collectively "Losses")
to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from
the Initial Placement and the Registration Statement which
resulted in such Losses; provided, however, that in no case
shall the Purchaser be responsible, in the aggregate, for
any amount in excess of the purchase discount, commission or
compensation applicable to such Security, or in the case of
an Exchange Security, applicable to the Security which was
exchangeable into such Exchange Security, as set forth on
the cover page of the Final Memorandum, nor shall any
underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the
<PAGE>
24
securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If
the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements
or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received
by the Trust and the Company shall be deemed to be equal to
the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the
Final Memorandum. Benefits received by the Purchaser shall
be deemed to be equal to the total purchase discounts,
commissions or compensation as set forth on the cover page
of the Final Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the excess, if any,
of the value to such Holder of receiving Securities or
Exchange Securities, as applicable, registered under the Act
over the value to such Holder of holding Securities not
registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the
cover page of the Prospectus forming a part of the
Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference to whether
any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any
other method of allocation which does not take account of
the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this
Section 6, each person who controls a Holder within the
meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and
each person who controls the Company or the Trust within the
meaning of either the Act or the Exchange Act, each officer
of the Company and each trustee of the Trust who shall have
signed the Registration Statement and each director of the
<PAGE>
25
Company and each trustee of the Trust shall have the same
rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph
(d).
(e) The provisions of this Section 6 will remain
in full force and effect, regardless of any investigation
made by or on behalf of any Holder, the Company or the Trust
or any of the officers, directors, trustees or controlling
persons referred to in Section 6 hereof, and will survive
the sale by a Holder of securities covered by a Registration
Statement.
7. Additional Interest and Additional
Distributions Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") shall become payable in
respect of the Junior Subordinated Debt Securities
(including in respect of amounts accruing during any
Extension Period (as defined in the Junior Subordinated
Indenture)), and corresponding additional distributions (the
"Additional Distributions") shall become payable on the
Capital Securities as follows if any of the following events
occur (each such event in clauses (i) through (iv) below, a
"Registration Default"):
(i) if the Exchange Offer Registration Statement
is not filed with the Commission on or prior to the 60th day
following the Closing Date;
(ii) if the Exchange Offer Registration Statement
is not declared effective on or prior to the 150th day
following the Closing Date;
(iii) if the Registered Exchange Offer is not
consummated or the Shelf Registration Statement is not
declared effective on or prior to the 180th day (or, if the
Company shall determine in good faith that a Tax Contingency
exists on such 180th day, the 240th day (a "Tax Contingency
Extension")) following the Closing Date; or
(iv) if, after the 180th day (or in the case of a
Tax Contingency Extension, the 240th day) following the
Closing Date, and after the Shelf Registration Statement is
declared effective, (A) such Shelf Registration Statement
ceases to be effective prior to the end of the Shelf
Registration Period (except as permitted in paragraph (b) of
this Section 7); or (B) such Shelf Registration Statement or
the related Prospectus ceases to be useable in connection
<PAGE>
26
with resales of Securities or Exchange Securities, as the
case may be, covered by such Shelf Registration Statement
prior to the end of the Shelf Registration Period (except as
permitted in paragraph (b) of this Section 7) because either
(1) any event occurs as a result of which the related
Prospectus forming part of such Shelf Registration Statement
would include any untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein in the light of the circumstances under
which they were made not misleading or (2) it shall be
necessary to amend such Shelf Registration Statement, or
supplement the related Prospectus, to comply with the
Securities Act or the Exchange Act or the respective rules
thereunder.
Additional Interest and Additional Distributions
shall accrue on the Junior Subordinated Debt Securities and
the Capital Securities, respectively, over and above the
interest rate or distribution rate, as the case may be, set
forth in the title to the Junior Subordinated Debt
Securities and the Capital Securities following the
occurrence of each Registration Default set forth in
clauses (i), (ii), (iii) and (iv) above from and including
the next day following each such Registration Default, in
each case at a rate equal to 0.25% per annum; provided,
however, that the aggregate amount of Additional Interest
and Additional Distributions, respectively, payable pursuant
this Section 7(a) will in no event exceed 0.75% per annum.
The Additional Interest and the Additional Distributions
attributable to each Registration Default shall cease to
accrue from the date such Registration Default is cured.
(b) A Registration Default referred to in
Section 7(a)(iv) shall be deemed not to have occurred and be
continuing in relation to the Shelf Registration Statement
or the related Prospectus if (i) such Registration Default
has occurred solely as a result of (x) the filing of a post-
effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with
respect to the Company where such post-effective amendment
is not yet effective and needs to be declared effective to
permit Holders to use the related Prospectus or (y) the
occurrence of other material events or developments with
respect to the Trust or the Company that would need to be
described in such Registration Statement or the related
Prospectus and (ii) in the case of clause (y), the Trust and
the Company are proceeding promptly and in good faith to
amend or supplement such Registration Statement and related
<PAGE>
27
Prospectus to describe such events; provided, however, that
in any case, if such Registration Default occurs for a
continuous period in excess of 45 days, Additional Interest
and Additional Distributions shall be payable in accordance
with the above paragraph from the first day of such 45-day
period until the date on which such Registration Default is
cured.
(c) Any amounts of Additional Interest and
Additional Distributions due pursuant to the foregoing
paragraphs will be payable in cash on June 4 and December 4
each year to the holders of record on the preceding May 20
and November 20, respectively.
8. Miscellaneous.
(a) No Inconsistent Agreements. Each of the
Trust and the Company has not, as of the date hereof,
entered into, nor shall it, on or after the date
hereof, enter into, any agreement with respect to the
Securities that is inconsistent with the rights granted
to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of
this Agreement, including the provisions of this
sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the
Trust and the Company have obtained the written consent
of the Holders of at least a majority of the then
outstanding aggregate liquidation amount or principal
amount, as the case may be, of Securities (or, after
the consummation of any Exchange Offer in accordance
with Section 2 hereof, of Exchange Securities);
provided, however, that, with respect to any matter
that affects the rights of the Purchaser hereunder, the
Trust and the Company shall obtain the written consent
of the Purchaser. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a
Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be
given by the Majority Holders, determined on the basis
of securities being sold rather than registered under
such Registration Statement.
<PAGE>
28
(c) Notices. All notices and other
communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the most current
address given by such holder to the Company in
accordance with the provisions of this
Section 8(c), which address initially is, with
respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture,
with a copy in like manner to Deutsche Morgan
Grenfell Inc.;
(2) if to you, initially at the address set
forth in the Purchase Agreement; and
(3) if to the Company or the Trust, initially
at the address set forth in the Purchase Agreement.
All such notices and communications shall be
deemed to have been duly given when received.
The Purchaser, the Trust or the Company by notice
to the other may designate additional or different addresses
for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors
and assigns of each of the parties, including, without the
need for an express assignment or any consent by the Company
or the Trust thereto, subsequent Holders of Securities
and/or Exchange Securities. The Trust and the Company
hereby agree to extend the benefits of this Agreement to any
Holder of Securities and/or Exchange Securities and any such
Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
<PAGE>
29
(f) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be
governed by and construed in accordance with the internal
laws of the State of New York applicable to agreements made
and to be performed in said State.
(h) Severability. In the event that any one of
more of the provisions contained herein, or the application
thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall
not be in any way impaired or affected thereby, it being
intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted
by law.
(i) Securities Held by the Trust or the Company,
etc. Whenever the consent or approval of Holders of a
specified percentage of liquidation amount or principal
amount, as the case may be, of Securities or Exchange
Securities is required hereunder, Securities or Exchange
Securities, as applicable, held by the Trust or the Company
or their respective Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such
subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Securities or Exchange
Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such
required percentage.
Please confirm that the foregoing correctly sets
forth the agreement among the Trust, the Company and you.
Very truly yours,
REPUBLIC NEW YORK CAPITAL II,
by: /s/ S. Saali
------------------------
Name: Stephen Saali
Title: Administrative Trustee
REPUBLIC NEW YORK CORPORATION,
by: /s/ Thomas F. Robards
--------------------------
Name: Thomas F. Robards
Title: Executive Vice President,
Treasurer & Chief
Financial Officer
Accepted in New York, New York
December 4, 1996
DEUTSCHE MORGAN GRENFELL INC.,
by: /s/ Gregory B. Williams
----------------------------
Name: Gregory B. Williams
Title: Director
by: /s/ Michael H. Ewlyn
----------------------------
Name: Michael H. Ewlyn
Title: Managing Director
<PAGE>
ANNEX A
Annex A
Each broker-dealer that receives Exchange
Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended
or supplemented from time to time, may be used by a broker-
dealer in connection with resales of Exchange Securities
received in exchange for Securities acquired by such broker-
dealer as a result of market-making activities or other
trading activities. The Trust and the Company have agreed
that, ending on the close of business on the 180th day
following the Expiration Date (as defined herein), it will
make this Prospectus available to any broker-dealer for use
in connection with any such resale. See "Plan of
Distribution".
<PAGE>
ANNEX B
Annex B
Each broker-dealer that receives Exchange
Securities for its own account in exchange for Securities,
where such Securities were acquired by such broker-dealer as
a result of market-making activities or other trading
activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange
Securities. See "Plan of Distribution".
<PAGE>
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange
Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or
other trading activities. The Trust and the Company have
agreed that, starting on the Expiration Date and ending on
the close of business on the 180th day following the
Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in
connection with any such resale. In addition, until
, 199 , all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Trust and the Company will not receive any
proceeds from any sale of Exchange Securities by broker-
dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-
the-counter market, in negotiated transactions, through the
writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form
of commissions or concessions from any such broker-dealer
and/or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act
and any profit of any such resale of Exchange Securities and
any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities
Act.
<PAGE>
2
For a period of 180 days after the Expiration
Date, the Trust and the Company will promptly send
additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The
Trust and the Company have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of
one counsel for the holders of the Securities) other than
commissions or concessions of any brokers or dealers and
will indemnify the holders of the Securities (including any
broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
[If applicable, add information required by
Regulation S-K Items 507 and/or 508.]
<PAGE>
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND
10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:___________________________________________
Address: _______________________________________
_______________________________________
Rider B
If the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does
not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will
receive Exchange Securities for its own account in exchange
for Securities, it represents that the Securities to be
exchanged for Exchange Securities were acquired by it as
a result of market-making activities or other trading
activities and acknowledges that it will deliver a
prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities
Act.
<PAGE>
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
Republic New York Capital II
Republic New York Corporation
452 Fifth Avenue
New York, NY 10018
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004
Re: 7.53% Capital Securities (the "Securities")
of Republic New York Capital II, fully and
unconditionally guaranteed by Republic New
York Corporation
Ladies and Gentlemen:
Please be advised that the Securities and Exchange
Commission has declared effective a Registration Statement
on Form S-3 under the Securities Act of 1933 with regard to
all of the Securities referenced above. Accordingly, there
is no longer any restriction as to whom such Securities may
be sold and any restrictions on the CUSIP designation are no
longer appropriate and may be removed. We understand that
upon receipt of this letter, DTC will remove any stop or
restriction on its system with respect to this issue.
As always, please do not hesitate to call if we
can be of further assistance.
REPUBLIC NEW YORK CAPITAL II,
by:_________________________
Authorized Officer
REPUBLIC NEW YORK CORPORATION,
by:__________________________
Authorized Officer
[LOGO] KPMG Peat Marwick LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Republic New York Corporation
We consent to incorporation by reference in the Registration Statement for
$200 million Capital Securities of Republic New York Capital II on Form S-4
of Republic New York Corporation of our report dated January 16, 1996,
relating to the consolidated statements of condition of Republic New York
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 Republic National Bank of New York
as of December 31, 1995 and 1994, which report appears on page 57 of the
1995 Republic New York Corporation Annual Report on Form 10-K which is
included in the 1995 Republic New York Corporation Annual Report to
Stockholders. Our report refers to the adoption of the provisions of the
Statement of Financial Accounting Standards Nos. 114, 118 and 122 in 1995
and No. 115 in 1993. In addition, we consent to the reference to our firm
under the heading "Experts" in the Registration Statement.
/s/ KPMG Peat Marwick LLP
New York, New York
January 31, 1997
REPUBLIC NEW YORK CORPORATION
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of Republic New York Corporation ("Republic"), a Maryland
corporation, hereby constitutes and appoints each of Walter H. Weiner,
Thomas F. Robards and William F. Rosenblum, Jr., his or her true and lawful
attorney and agent, in the name and on behalf of the undersigned, with full
power to act alone, to do any and all acts and things and execute any and
all instruments which the said attorney and agent may deem necessary or
advisable to enable Republic to file a Registration Statement pursuant to
the Securities Act of 1933 on Form S-4 to register (i) $206,186,000
principal amount of 7.53% Junior Subordinated Debentures due December 4,
2026 of Republic; (ii) $200,000,000 7.53% Capital Securities (the "Capital
Securities") of Republic New York Capital II (the "Trust"); and (iii) a
Guarantee of Republic with respect to the Capital Securities (the Junior
Subordinated Debentures, Capital Securities and Guarantee herein
collectively referred to as the "Securities"), in connection with an
exchange offer of the Securities for substantially identical securities
offered by Republic and the Trust pursuant to a Registration Agreement
dated December 4, 1996, and to comply with the Securities Act of 1933, as
amended, and any rules and regulations and requirements of the Securities
and Exchange Commission in respect thereof, including the power and
authority to sign the name of the undersigned in his or her capacity as
Director and/or Officer of Republic (including the power to affix the
undersigned's signature in typed form as required by Rule 499(d)(2) of the
Securities Act of 1933, as amended) to the Registration Statement to be
filed with the Securities and Exchange Commission with respect thereto, to
any and all amendments, including post-effective amendments, to the said
Registration Statement and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statement or
amendments thereto, HEREBY RATIFYING AND CONFIRMING all that the said
attorneys and agents, or any of them, has done, shall do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this day of January, 1997.
--------------------------------
REPUBLIC NEW YORK Capital II
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Administrative Trustee
of Republic New York Capital II (the "Trust"), a Delaware statutory
business trust, hereby constitutes and appoints each of Walter H. Weiner
and William F. Rosenblum, Jr., his true and lawful attorney and agent, in
the name and on behalf of the undersigned, with full power to act alone, to
do any and all acts and things and execute any and all instruments which
the said attorney and agent may deem necessary or advisable to enable the
Trust to file a Registration Statement pursuant to the Securities Act of
1933 on Form S-4 to register (i) $206,186,000 principal amount of 7.53%
Junior Subordinated Debentures due December 4, 2026 of Republic New York
Corporation ("Republic"); (ii) $200,000,000 7.53% Capital Securities (the
"Capital Securities") of the Trust; and (iii) a Guarantee of Republic with
respect to the Capital Securities (the Junior Subordinated Debentures,
Capital Securities and Guarantee herein collectively referred to as the
"Securities"), in connection with an exchange offer of the Securities for
substantially identical securities offered by Republic and the Trust
pursuant to a Registration Agreement dated December 4, 1996, and to comply
with the Securities Act of 1933, as amended, and any rules and regulations
and requirements of the Securities and Exchange Commission in respect
thereof, including the power and authority to sign the name of the
undersigned in his or her capacity as Director and/or Officer of Republic
(including the power to affix the undersigned's signature in typed form as
required by Rule 499(d)(2) of the Securities Act of 1933, as amended) to
the Registration Statement to be filed with the Securities and Exchange
Commission with respect thereto, to any and all amendments, including
post-effective amendments, to the said Registration Statement and to any
and all instruments and documents filed as a part of or in connection with
the said Registration Statement or amendments thereto, HEREBY RATIFYING AND
CONFIRMING all that the said attorneys and agents, or any of them, has
done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this day
of January, 1997.
--------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
REPUBLIC NEW YORK CORPORATION
(Exact name of obligor as specified in its charter)
MARYLAND 13-2764867
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
425 Fifth Avenue
New York, New York 10018
(Address of principal executive offices) (Zip Code)
Junior Subordinated Debt Securities of
Republic New York Corporation
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers
Trust Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 21, 1995 -
Incorporated hereinby reference to Exhibit 1 filed
with Form T-1 Statement, Registration No. 33-65171,
and Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated March
20, 1996, copy attached.
Exhibit 2 - Certificate of Authority to commence business
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein by
reference to Exhibit 2 filed with Form T-1
Statement, Registration No.33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as
amended on September 17,1996 - Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 333-15263.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - A copy of the latest report of condition of
Bankers Trust Company dated as of September 30,
1996.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New
York, on the 22nd day of January, 1997.
BANKERS TRUST COMPANY
By: _______________________________
Jenna Kaufman
Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New
York, on the 21st day of January, 1997.
BANKERS TRUST COMPANY
By: Jenna Kaufman
Jenna Kaufman
Vice President
-5-
<PAGE>
<TABLE>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks September 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of
the quarter.
Schedule RC--Balance Sheet
<CAPTION>
--------------
| C400 |
------------------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
------------------------------
<S> <C> <C> <C>
ASSETS | / / / / / / / / / / / |
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin(1)<F1> ...................... | 0081 809,000 |1.a.
b. Interest-bearing balances(2)<F2> ................................................. | 0071 4,453,000 |1.b.
2. Securities: | / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ....................... | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...................... | 1773 4,133,000 |2.b.
3 Federal funds sold and securities purchased under agreements to resell in domestic offices | / / / / / / / / / / / |
of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | / / / / / / / / / / / |
a. Federal funds sold ............................................................... | 0276 5,933,000 |3.a.
b. Securities purchased under agreements to resell .................................. | 0277 413,000 |3.b.
4. Loans and lease financing receivables: | / / / / / / / / / / / |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 27,239,000 | / / / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses....................RCFD 3123 917,000 | / / / / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve .......................RCFD 3128 0 | / / / / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) .............................. | 2125 26,322,000 |4.d.
5. Assets held in trading accounts ....................................................... | 3545 36,669,000 |5.
6. Premises and fixed assets (including capitalized leases) .............................. | 2145 870,000 |6.
7. Other real estate owned (from Schedule RC-M) .......................................... | 2150 215,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 212,000 |8.
9. Customers' liability to this bank on acceptances outstanding .......................... | 2155 577,000 |9.
10. Intangible assets (from Schedule RC-M) ................................................ | 2143 18,000 |10.
11. Other assets (from Schedule RC-F) ..................................................... | 2160 8,808,000 |11.
12. Total assets (sum of items 1 through 11) .............................................. | 2170 89,432,000 |12.
------------------------------
- --------------------------
<FN>
<F1>(1) Includes cash items in process of collection and unposted debits.
<F2>(2) Includes time certificates of deposit not held in trading accounts.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State ZIP: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Schedule RC--Continued
---------------------------------
Dollar Amounts in Thousands | / / / / Bil Mil Thou |
---------------------------------
<S> <C> <C> <C> <C>
LIABILITIES | / / / / / / / / / / / |
13. Deposits: | / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, | / / / / / / / / / / / / |
part I) | RCON 2200 9,391,000 |13.a.
(1) Noninterest-bearing(1) <F1>........RCON 6631 2,734,000.......... | / / / / / / / / / / / / |13.a.(1)
(2) Interest-bearing ...................RCON 6636 6,657,000.......... | / / / / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from | / / / / / / / / / / / / |
Schedule RC-E part II) | RCFN 2200 23,385,000 |13.b.
(1) Noninterest-bearing ..............RCFN 6631 654,000 | / / / / / / / / / / / |13.b.(1)
(2) Interest-bearing .................RCFN 6636 22,731,000 | / / / / / / / / / / / / |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | / / / / / / / / / / / |
in domestic offices of the bank and of its Edge and Agreement subsidiaries, | / / / / / / / / / / / |
and in IBFs: | / / / / / / / / / / / / |
a. Federal funds purchased ............................................... | RCFD 0278 3,090,000 |14.a.
b. Securities sold under agreements to repurchase ........................ | RCFD 0279 99,000 |14.b.
15. a. Demand notes issued to the U.S. Treasury .............................. | RCON 2840 0 |15.a.
b. Trading liabilities ................................................... | RCFD 3548 18,326,000 |15.b.
16. Other borrowed money: | / / / / / / / / / / / / |
a. With original maturity of one year or less ............................ | RCFD 2332 17,476,000 |16.a.
b. With original maturity of more than one year .......................... | RCFD 2333 2,771,000 |16.b.
17. Mortgage indebtedness and obligations under capitalized leases ............. | RCFD 2910 31,000 |17.
18. Bank's liability on acceptances executed and outstanding ................... | RCFD 2920 577,000 |18.
19. Subordinated notes and debentures .......................................... | RCFD 3200 1,228,000 |19.
20. Other liabilities (from Schedule RC-G) ..................................... | RCFD 2930 8,398,000 |20.
21. Total liabilities (sum of items 13 through 20) ............................. | RCFD 2948 84,772,000 |21.
| / / / / / / / / / / / |
22. Limited-life preferred stock and related surplus ........................... | RCFD 3282 0 |22.
EQUITY CAPITAL | / / / / / / / / / / / |
23. Perpetual preferred stock and related surplus .............................. | RCFD 3838 500,000 |23.
24. Common stock ............................................................... | RCFD 3230 1,002,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ................... | RCFD 3839 527,000 |25.
26. a. Undivided profits and capital reserves ................................ | RCFD 3632 3,017,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities | RCFD 8434 ( 16,000) |26.b.
27. Cumulative foreign currency translation adjustments ........................ | RCFD 3284 ( 370,000) |27.
28. Total equity capital (sum of items 23 through 27) .......................... | RCFD 3210 4,660,000 |28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of | / / / / / / / / / / / / |
items 21, 22, and 28) ...................................................... | RCFD 3300 89,432,000 |29.
-------------------------------
<FN>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995 ........................................... -----------
| RCFD 6724 N/A | M.1
--------------------------
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted
in accordance with generally accepted auditing standards by a
certified public accounting firm which submits a report on the
consolidated holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work) 8 = No external
audit work
- --------------------------------------------
<F1>(1) Including total demand deposits and noninterest-bearing time and savings deposits.
</FN>
</TABLE>
<PAGE>
State of New York,
Banking Department
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated March 20, 1996, providing for an
increase in authorized capital stock from $1,351,666,670 consisting of
85,166,667 shares with a par value of $10 each designated as Common Stock
and 500 shares with a par value of $1,000,000 each designated as Series
Preferred Stock to $1,501,666,670 consisting of 100,166,667 shares with a
par value of $10 each designated as Common Stock and 500 shares with a par
value of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York,
this 21st day of March in the Year of our Lord one thousand
nine hundred and ninety-six.
Peter M. Philbin
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and an Assistant Secretary of Bankers Trust Company, do
hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by
the Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby
amended to increase the aggregate number of shares which the corporation
shall have authority to issue and to increase the amount of its authorized
capital stock in conformity therewith.
4. Article III of the organization certificate with reference to
the authorized capital stock, the number of shares into which the capital
stock shall be divided, the par value of the shares and the capital stock
outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is
hereafter to have is One Billion, Three Hundred Fifty One Million,
Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars
($1,351,666,670), divided into Eighty-Five Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (85,166,667) shares
with a par value of $10 each designated as Common Stock and 500
shares with a par value of One Million Dollars ($1,000,000) each
designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is
hereafter to have is One Billion, Five Hundred One Million, Six
Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars
($1,501,666,670), divided into One Hundred Million, One Hundred
Sixty Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares
with a par value of $10 each designated as Common Stock and 500
shares with a par value of One Million Dollars ($1,000,000) each
designated as Series Preferred Stock."
<PAGE>
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all
outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate
this 20th day of March , 1996.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in
the foregoing certificate; that she has read the foregoing certificate and
knows the contents thereof, and that the statements herein contained are
true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 20th day of March, 1996.
Sandra L. West
Notary Public
SANDRA L. WEST Counterpart filed in the
Notary Public State of New York Office of the Superintendent of
No. 31-4942101 Banks, State of New York,
Qualified in New York County This 21st day of March, 1996
Commission Expires September 19, 1996
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
REPUBLIC NEW YORK CORPORATION
(Exact name of obligor as specified in its charter)
MARYLAND 13-2764867
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
425 Fifth Avenue
New York, New York 10018
(Address of principal executive offices) (Zip Code)
Capital Securities of Republic New York Capital II
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers
Trust Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 21, 1995 -
Incorporated hereinby reference to Exhibit 1 filed
with Form T-1 Statement, Registration No. 33-65171,
and Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated March
20, 1996, copy attached.
Exhibit 2 - Certificate of Authority to commence business
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein by
reference to Exhibit 2 filed with Form T-1
Statement, Registration No.33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as
amended on September 17,1996 - Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 333-15263.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - A copy of the latest report of condition of
Bankers Trust Company dated as of September 30,
1996.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New
York, on the 22nd day of January, 1997.
BANKERS TRUST COMPANY
By: _______________________________
Jenna Kaufman
Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New
York, on the 21st day of January, 1997.
BANKERS TRUST COMPANY
By: Jenna Kaufman
Jenna Kaufman
Vice President
-5-
<PAGE>
<TABLE>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks September 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of
the quarter.
Schedule RC--Balance Sheet
<CAPTION>
--------------
| C400 |
------------------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
------------------------------
<S> <C> <C> <C>
ASSETS | / / / / / / / / / / / |
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin(1)<F1> ...................... | 0081 809,000 |1.a.
b. Interest-bearing balances(2)<F2> ................................................. | 0071 4,453,000 |1.b.
2. Securities: | / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ....................... | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...................... | 1773 4,133,000 |2.b.
3 Federal funds sold and securities purchased under agreements to resell in domestic offices | / / / / / / / / / / / |
of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | / / / / / / / / / / / |
a. Federal funds sold ............................................................... | 0276 5,933,000 |3.a.
b. Securities purchased under agreements to resell .................................. | 0277 413,000 |3.b.
4. Loans and lease financing receivables: | / / / / / / / / / / / |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 27,239,000 | / / / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses....................RCFD 3123 917,000 | / / / / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve .......................RCFD 3128 0 | / / / / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) .............................. | 2125 26,322,000 |4.d.
5. Assets held in trading accounts ....................................................... | 3545 36,669,000 |5.
6. Premises and fixed assets (including capitalized leases) .............................. | 2145 870,000 |6.
7. Other real estate owned (from Schedule RC-M) .......................................... | 2150 215,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 212,000 |8.
9. Customers' liability to this bank on acceptances outstanding .......................... | 2155 577,000 |9.
10. Intangible assets (from Schedule RC-M) ................................................ | 2143 18,000 |10.
11. Other assets (from Schedule RC-F) ..................................................... | 2160 8,808,000 |11.
12. Total assets (sum of items 1 through 11) .............................................. | 2170 89,432,000 |12.
------------------------------
- --------------------------
<FN>
<F1>(1) Includes cash items in process of collection and unposted debits.
<F2>(2) Includes time certificates of deposit not held in trading accounts.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State ZIP: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Schedule RC--Continued
---------------------------------
Dollar Amounts in Thousands | / / / / Bil Mil Thou |
---------------------------------
<S> <C> <C> <C> <C>
LIABILITIES | / / / / / / / / / / / |
13. Deposits: | / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, | / / / / / / / / / / / / |
part I) | RCON 2200 9,391,000 |13.a.
(1) Noninterest-bearing(1) <F1>........RCON 6631 2,734,000.......... | / / / / / / / / / / / / |13.a.(1)
(2) Interest-bearing ...................RCON 6636 6,657,000.......... | / / / / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from | / / / / / / / / / / / / |
Schedule RC-E part II) | RCFN 2200 23,385,000 |13.b.
(1) Noninterest-bearing ..............RCFN 6631 654,000 | / / / / / / / / / / / |13.b.(1)
(2) Interest-bearing .................RCFN 6636 22,731,000 | / / / / / / / / / / / / |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | / / / / / / / / / / / |
in domestic offices of the bank and of its Edge and Agreement subsidiaries, | / / / / / / / / / / / |
and in IBFs: | / / / / / / / / / / / / |
a. Federal funds purchased ............................................... | RCFD 0278 3,090,000 |14.a.
b. Securities sold under agreements to repurchase ........................ | RCFD 0279 99,000 |14.b.
15. a. Demand notes issued to the U.S. Treasury .............................. | RCON 2840 0 |15.a.
b. Trading liabilities ................................................... | RCFD 3548 18,326,000 |15.b.
16. Other borrowed money: | / / / / / / / / / / / / |
a. With original maturity of one year or less ............................ | RCFD 2332 17,476,000 |16.a.
b. With original maturity of more than one year .......................... | RCFD 2333 2,771,000 |16.b.
17. Mortgage indebtedness and obligations under capitalized leases ............. | RCFD 2910 31,000 |17.
18. Bank's liability on acceptances executed and outstanding ................... | RCFD 2920 577,000 |18.
19. Subordinated notes and debentures .......................................... | RCFD 3200 1,228,000 |19.
20. Other liabilities (from Schedule RC-G) ..................................... | RCFD 2930 8,398,000 |20.
21. Total liabilities (sum of items 13 through 20) ............................. | RCFD 2948 84,772,000 |21.
| / / / / / / / / / / / |
22. Limited-life preferred stock and related surplus ........................... | RCFD 3282 0 |22.
EQUITY CAPITAL | / / / / / / / / / / / |
23. Perpetual preferred stock and related surplus .............................. | RCFD 3838 500,000 |23.
24. Common stock ............................................................... | RCFD 3230 1,002,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ................... | RCFD 3839 527,000 |25.
26. a. Undivided profits and capital reserves ................................ | RCFD 3632 3,017,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities | RCFD 8434 ( 16,000) |26.b.
27. Cumulative foreign currency translation adjustments ........................ | RCFD 3284 ( 370,000) |27.
28. Total equity capital (sum of items 23 through 27) .......................... | RCFD 3210 4,660,000 |28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of | / / / / / / / / / / / / |
items 21, 22, and 28) ...................................................... | RCFD 3300 89,432,000 |29.
-------------------------------
<FN>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995 ........................................... -----------
| RCFD 6724 N/A | M.1
--------------------------
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted
in accordance with generally accepted auditing standards by a
certified public accounting firm which submits a report on the
consolidated holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work) 8 = No external
audit work
- --------------------------------------------
<F1>(1) Including total demand deposits and noninterest-bearing time and savings deposits.
</FN>
</TABLE>
<PAGE>
State of New York,
Banking Department
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated March 20, 1996, providing for an
increase in authorized capital stock from $1,351,666,670 consisting of
85,166,667 shares with a par value of $10 each designated as Common Stock
and 500 shares with a par value of $1,000,000 each designated as Series
Preferred Stock to $1,501,666,670 consisting of 100,166,667 shares with a
par value of $10 each designated as Common Stock and 500 shares with a par
value of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York,
this 21st day of March in the Year of our Lord one thousand
nine hundred and ninety-six.
Peter M. Philbin
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and an Assistant Secretary of Bankers Trust Company, do
hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by
the Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby
amended to increase the aggregate number of shares which the corporation
shall have authority to issue and to increase the amount of its authorized
capital stock in conformity therewith.
4. Article III of the organization certificate with reference to
the authorized capital stock, the number of shares into which the capital
stock shall be divided, the par value of the shares and the capital stock
outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is
hereafter to have is One Billion, Three Hundred Fifty One Million,
Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars
($1,351,666,670), divided into Eighty-Five Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (85,166,667) shares
with a par value of $10 each designated as Common Stock and 500
shares with a par value of One Million Dollars ($1,000,000) each
designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is
hereafter to have is One Billion, Five Hundred One Million, Six
Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars
($1,501,666,670), divided into One Hundred Million, One Hundred
Sixty Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares
with a par value of $10 each designated as Common Stock and 500
shares with a par value of One Million Dollars ($1,000,000) each
designated as Series Preferred Stock."
<PAGE>
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all
outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate
this 20th day of March , 1996.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in
the foregoing certificate; that she has read the foregoing certificate and
knows the contents thereof, and that the statements herein contained are
true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 20th day of March, 1996.
Sandra L. West
Notary Public
SANDRA L. WEST Counterpart filed in the
Notary Public State of New York Office of the Superintendent of
No. 31-4942101 Banks, State of New York,
Qualified in New York County This 21st day of March, 1996
Commission Expires September 19, 1996
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
REPUBLIC NEW YORK CORPORATION
(Exact name of obligor as specified in its charter)
MARYLAND 13-2764867
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
425 Fifth Avenue
New York, New York 10018
(Address of principal executive offices) (Zip Code)
Republic New York Corporation Guarantee with respect to
Capital Securities of Republic New York Capital II
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers
Trust Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 21, 1995 -
Incorporated hereinby reference to Exhibit 1 filed
with Form T-1 Statement, Registration No. 33-65171,
and Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated March
20, 1996, copy attached.
Exhibit 2 - Certificate of Authority to commence business
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein by
reference to Exhibit 2 filed with Form T-1
Statement, Registration No.33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as
amended on September 17,1996 - Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 333-15263.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - A copy of the latest report of condition of
Bankers Trust Company dated as of September 30,
1996.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New
York, on the 22nd day of January, 1997.
BANKERS TRUST COMPANY
By: _______________________________
Jenna Kaufman
Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New
York, on the 21st day of January, 1997.
BANKERS TRUST COMPANY
By: Jenna Kaufman
Jenna Kaufman
Vice President
-5-
<PAGE>
<TABLE>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks September 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of
the quarter.
Schedule RC--Balance Sheet
<CAPTION>
--------------
| C400 |
------------------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
------------------------------
<S> <C> <C> <C>
ASSETS | / / / / / / / / / / / |
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin(1)<F1> ...................... | 0081 809,000 |1.a.
b. Interest-bearing balances(2)<F2> ................................................. | 0071 4,453,000 |1.b.
2. Securities: | / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ....................... | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...................... | 1773 4,133,000 |2.b.
3 Federal funds sold and securities purchased under agreements to resell in domestic offices | / / / / / / / / / / / |
of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | / / / / / / / / / / / |
a. Federal funds sold ............................................................... | 0276 5,933,000 |3.a.
b. Securities purchased under agreements to resell .................................. | 0277 413,000 |3.b.
4. Loans and lease financing receivables: | / / / / / / / / / / / |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 27,239,000 | / / / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses....................RCFD 3123 917,000 | / / / / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve .......................RCFD 3128 0 | / / / / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) .............................. | 2125 26,322,000 |4.d.
5. Assets held in trading accounts ....................................................... | 3545 36,669,000 |5.
6. Premises and fixed assets (including capitalized leases) .............................. | 2145 870,000 |6.
7. Other real estate owned (from Schedule RC-M) .......................................... | 2150 215,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 212,000 |8.
9. Customers' liability to this bank on acceptances outstanding .......................... | 2155 577,000 |9.
10. Intangible assets (from Schedule RC-M) ................................................ | 2143 18,000 |10.
11. Other assets (from Schedule RC-F) ..................................................... | 2160 8,808,000 |11.
12. Total assets (sum of items 1 through 11) .............................................. | 2170 89,432,000 |12.
------------------------------
- --------------------------
<FN>
<F1>(1) Includes cash items in process of collection and unposted debits.
<F2>(2) Includes time certificates of deposit not held in trading accounts.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State ZIP: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Schedule RC--Continued
---------------------------------
Dollar Amounts in Thousands | / / / / Bil Mil Thou |
---------------------------------
<S> <C> <C> <C> <C>
LIABILITIES | / / / / / / / / / / / |
13. Deposits: | / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, | / / / / / / / / / / / / |
part I) | RCON 2200 9,391,000 |13.a.
(1) Noninterest-bearing(1) <F1>........RCON 6631 2,734,000.......... | / / / / / / / / / / / / |13.a.(1)
(2) Interest-bearing ...................RCON 6636 6,657,000.......... | / / / / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from | / / / / / / / / / / / / |
Schedule RC-E part II) | RCFN 2200 23,385,000 |13.b.
(1) Noninterest-bearing ..............RCFN 6631 654,000 | / / / / / / / / / / / |13.b.(1)
(2) Interest-bearing .................RCFN 6636 22,731,000 | / / / / / / / / / / / / |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | / / / / / / / / / / / |
in domestic offices of the bank and of its Edge and Agreement subsidiaries, | / / / / / / / / / / / |
and in IBFs: | / / / / / / / / / / / / |
a. Federal funds purchased ............................................... | RCFD 0278 3,090,000 |14.a.
b. Securities sold under agreements to repurchase ........................ | RCFD 0279 99,000 |14.b.
15. a. Demand notes issued to the U.S. Treasury .............................. | RCON 2840 0 |15.a.
b. Trading liabilities ................................................... | RCFD 3548 18,326,000 |15.b.
16. Other borrowed money: | / / / / / / / / / / / / |
a. With original maturity of one year or less ............................ | RCFD 2332 17,476,000 |16.a.
b. With original maturity of more than one year .......................... | RCFD 2333 2,771,000 |16.b.
17. Mortgage indebtedness and obligations under capitalized leases ............. | RCFD 2910 31,000 |17.
18. Bank's liability on acceptances executed and outstanding ................... | RCFD 2920 577,000 |18.
19. Subordinated notes and debentures .......................................... | RCFD 3200 1,228,000 |19.
20. Other liabilities (from Schedule RC-G) ..................................... | RCFD 2930 8,398,000 |20.
21. Total liabilities (sum of items 13 through 20) ............................. | RCFD 2948 84,772,000 |21.
| / / / / / / / / / / / |
22. Limited-life preferred stock and related surplus ........................... | RCFD 3282 0 |22.
EQUITY CAPITAL | / / / / / / / / / / / |
23. Perpetual preferred stock and related surplus .............................. | RCFD 3838 500,000 |23.
24. Common stock ............................................................... | RCFD 3230 1,002,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ................... | RCFD 3839 527,000 |25.
26. a. Undivided profits and capital reserves ................................ | RCFD 3632 3,017,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities | RCFD 8434 ( 16,000) |26.b.
27. Cumulative foreign currency translation adjustments ........................ | RCFD 3284 ( 370,000) |27.
28. Total equity capital (sum of items 23 through 27) .......................... | RCFD 3210 4,660,000 |28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of | / / / / / / / / / / / / |
items 21, 22, and 28) ...................................................... | RCFD 3300 89,432,000 |29.
-------------------------------
<FN>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995 ........................................... -----------
| RCFD 6724 N/A | M.1
--------------------------
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted
in accordance with generally accepted auditing standards by a
certified public accounting firm which submits a report on the
consolidated holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work) 8 = No external
audit work
- --------------------------------------------
<F1>(1) Including total demand deposits and noninterest-bearing time and savings deposits.
</FN>
</TABLE>
<PAGE>
State of New York,
Banking Department
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated March 20, 1996, providing for an
increase in authorized capital stock from $1,351,666,670 consisting of
85,166,667 shares with a par value of $10 each designated as Common Stock
and 500 shares with a par value of $1,000,000 each designated as Series
Preferred Stock to $1,501,666,670 consisting of 100,166,667 shares with a
par value of $10 each designated as Common Stock and 500 shares with a par
value of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York,
this 21st day of March in the Year of our Lord one thousand
nine hundred and ninety-six.
Peter M. Philbin
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and an Assistant Secretary of Bankers Trust Company, do
hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by
the Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby
amended to increase the aggregate number of shares which the corporation
shall have authority to issue and to increase the amount of its authorized
capital stock in conformity therewith.
4. Article III of the organization certificate with reference to
the authorized capital stock, the number of shares into which the capital
stock shall be divided, the par value of the shares and the capital stock
outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is
hereafter to have is One Billion, Three Hundred Fifty One Million,
Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars
($1,351,666,670), divided into Eighty-Five Million, One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven (85,166,667) shares
with a par value of $10 each designated as Common Stock and 500
shares with a par value of One Million Dollars ($1,000,000) each
designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is
hereafter to have is One Billion, Five Hundred One Million, Six
Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars
($1,501,666,670), divided into One Hundred Million, One Hundred
Sixty Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares
with a par value of $10 each designated as Common Stock and 500
shares with a par value of One Million Dollars ($1,000,000) each
designated as Series Preferred Stock."
<PAGE>
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all
outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate
this 20th day of March , 1996.
James T. Byrne, Jr.
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in
the foregoing certificate; that she has read the foregoing certificate and
knows the contents thereof, and that the statements herein contained are
true.
Lea Lahtinen
Lea Lahtinen
Sworn to before me this 20th day of March, 1996.
Sandra L. West
Notary Public
SANDRA L. WEST Counterpart filed in the
Notary Public State of New York Office of the Superintendent of
No. 31-4942101 Banks, State of New York,
Qualified in New York County This 21st day of March, 1996
Commission Expires September 19, 1996
