-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G16fW9m81tkxWxWPhszy8KAr58e4GRUGkZheepHLo6+t0eiZt/V1owHhKyWy5Ybv jKmfAXzjVnA6LLghdLp7Qg== 0000950123-97-010653.txt : 19971230 0000950123-97-010653.hdr.sgml : 19971230 ACCESSION NUMBER: 0000950123-97-010653 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19971229 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: REPUBLIC NEW YORK CORP CENTRAL INDEX KEY: 0000083246 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 132764867 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-42421 FILM NUMBER: 97745483 BUSINESS ADDRESS: STREET 1: 452 FIFTH AVE CITY: NEW YORK STATE: NY ZIP: 10018 BUSINESS PHONE: 2125256100 FILER: COMPANY DATA: COMPANY CONFORMED NAME: REPUBLIC NEW YORK CAPITAL III CENTRAL INDEX KEY: 0001050258 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-42421-01 FILM NUMBER: 97745484 BUSINESS ADDRESS: STREET 1: 452 FIFTH AVE T-7 CITY: NEW YORK STATE: NY ZIP: 10018 MAIL ADDRESS: STREET 2: 452 FIFTH AVE T-7 CITY: NEW YORK STATE: NY ZIP: 10018 FILER: COMPANY DATA: COMPANY CONFORMED NAME: REPUBLIC NEW YORK CAPITAL IV CENTRAL INDEX KEY: 0001050259 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-42421-02 FILM NUMBER: 97745485 BUSINESS ADDRESS: STREET 1: 452 FIFTH AVE T-7 CITY: NEW YORK STATE: NY ZIP: 10018 MAIL ADDRESS: STREET 2: 452 FIFTH AVE T-7 CITY: NEW YORK STATE: NY ZIP: 10018 S-3/A 1 AMENDMENT NO. 1 FOR FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON , 1997 REGISTRATION NO. 333-42421 333-42421-01 333-42421-02 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ REPUBLIC NEW YORK CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) MARYLAND 13-2764867 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
REPUBLIC NEW YORK CAPITAL III REPUBLIC NEW YORK CAPITAL IV (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 13-7136673 (STATE OR OTHER JURISDICTION 13-7136674 OF INCORPORATION OR ORGANIZATION) (IRS EMPLOYER IDENTIFICATION NO.)
------------------------ 452 FIFTH AVENUE NEW YORK, NEW YORK 10018 (212) 525-6100 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES) ------------------------ WILLIAM F. ROSENBLUM, JR. ESQ. SENIOR VICE PRESIDENT, DEPUTY GENERAL COUNSEL AND SECRETARY REPUBLIC NEW YORK CORPORATION 452 FIFTH AVENUE NEW YORK, NEW YORK 10018 (212) 525-6100 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, OF AGENT FOR SERVICE OF PROCESS) ------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement as determined by market conditions. ------------------------ If the only securities being requested on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [X] --------------------- 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. ================================================================================ 2 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 DECEMBER 29, 1997. PROSPECTUS Republic New York Corporation Debt Securities, Junior Subordinated Debt Securities and Debt Warrants Currency Warrants, Stock-Index Warrants and Other Warrants Preferred Stock, Depositary Shares and Preferred Stock Warrants Common Stock and Common Stock Warrants Republic New York Capital III Republic New York Capital IV Preferred Securities Guaranteed, to the extent set forth herein, by Republic New York Corporation [REPUBLIC LOGO] Republic New York Corporation (the "Corporation") may offer from time to time, together or separately, (i) one or more series of its unsecured debt securities which may be either senior debentures, notes, bonds and/or other evidences of indebtedness ("Senior Securities") or subordinated debentures, notes, bonds and/or other evidences of indebtedness ("Subordinated Securities" and, together with the Senior Securities, the "Debt Securities"), both of which may be convertible into common stock, par value $5 per share, of the Corporation ("Common Stock") or preferred stock, without par value, of the Corporation ("Preferred Stock"), (ii) unsecured junior subordinated debt securities ("Junior Subordinated Debt Securities"), (iii) warrants to purchase Senior Securities or Subordinated Securities ("Debt Warrants"), (iv) options, warrants or other rights entitling the holder to receive the cash value of the right to purchase ("Currency Call Warrants") or the right to sell ("Currency Put Warrants" and collectively with the Currency Call Warrants being referred to herein as the "Currency Warrants") a foreign currency or composite currency, (v) options, warrants or other rights entitling the holder to receive an amount in cash determined by reference to increases ("Stock-Index Call Warrants") and decreases ("Stock-Index Put Warrants" and collectively with Stock-Index Call Warrants being referred to herein as the "Stock-Index Warrants") in the level of a specified stock-index which may be based on one or more U.S. or foreign stocks or a combination thereof, (vi) options, warrants or other rights relating to other items or indexes ("Other Warrants"), (vii) shares of Preferred Stock which may be convertible into shares of Common Stock or exchangeable for Debt Securities, (viii) shares of Preferred Stock represented by depositary shares ("Depositary Shares"), (ix) warrants to purchase shares of Preferred Stock ("Preferred Stock Warrants"), (x) shares of Common Stock and (xi) warrants to purchase shares of Common Stock ("Common Stock Warrants"), in amounts, at prices and on terms to be determined at the time of the offering. The Debt Warrants, Currency Warrants, Stock-Index Warrants, Other Warrants, Preferred Stock Warrants and Common Stock Warrants are collectively referred to herein as the "Warrants"; and the Debt Securities, Junior Subordinated Debt Securities, Warrants, shares of Preferred Stock, Depositary Shares and shares of Common Stock are collectively referred to herein as the "Corporation Securities." Republic New York Capital III and Republic New York Capital IV (each, a "Trust" and collectively, the "Trusts"), each a statutory business trust formed under Delaware law, may offer, from time to time, preferred securities ("Trust Preferred Securities"). The Corporation will be the owner of the trust interests represented by common securities ("Common Securities" and, together with the Trust Preferred Securities, the "Trust Securities") to be issued by each Trust. The payment of distributions and payments on account of the liquidation of a Trust or the redemption of the Trust Securities issued by each such Trust will be guaranteed on a subordinated basis by the Corporation to the extent described herein and in any applicable prospectus supplements (the "Guarantees"). Unless indicated otherwise in a prospectus supplement, each Trust exists for the sole purposes of issuing the Trust Securities, investing the proceeds thereof in Junior Subordinated Debt Securities of the Corporation and making Distributions (as defined herein). The Corporation Securities and the Trust Preferred Securities are referred to herein collectively as the "Offered Securities". The Offered Securities offered pursuant to this Prospectus may be offered separately or together in one or more series up to an aggregate initial public offering price of $1,125,000,000 (the Trust Securities will be limited to $1,000,000,000) or the equivalent thereof denominated in foreign currencies or units of two or more foreign currencies such as the Euro of the European Monetary Union at individual prices and on terms to be set forth in one or more supplements to this Prospectus (each, a "Prospectus Supplement"). The Senior Securities will rank equally with all other unsubordinated and unsecured indebtedness of the Corporation. The Subordinated Securities will be subordinated to all existing and future Senior Indebtedness (as defined herein) of the Corporation. See "Description of Debt Securities". The Junior Subordinated Debt Securities will be subordinate to all existing and future Senior Debt (as defined herein) of the Corporation. See "Description of Junior Subordinated Debt Securities." The specific terms of the Offered Securities in respect of which this Prospectus is being delivered will be set forth in the applicable Prospectus Supplement and, among other things, will include, where applicable, (i) in the case of Debt Securities or Junior Subordinated Debt Securities, the specific designation, aggregate principal amount, ranking as senior or subordinated debt, authorized denominations, initial public offering price, maturity (which may be fixed or extendible), premium (if any), interest rate (which may be fixed or floating), any method of calculating the payment of interest, if any, the currency in which principal, premium, if any, and interest, if any, are payable, any exchangeability, conversion, redemption or sinking fund terms, the right of the Corporation, if any, to defer payment of interest on the Junior Subordinated Debt Securities and the maximum length of such deferral period, put options, if any, and any other specific terms; (ii) in the case of Preferred Stock or Trust Preferred Securities, the designation, number of shares, liquidation preference per share, initial public offering price, dividend or distribution rate (or method of calculation thereof), dates on which dividends or distributions shall be payable and dates from which dividends or distributions shall accrue, any redemption or sinking fund provisions, any voting rights, any conversion or exchange provisions, whether interests in the Preferred Stock will be represented by Depositary Shares, and any other rights, preferences, privileges, limitations or restrictions relating to the Preferred Stock or Trust Preferred Securities of a specific series and the terms upon which the proceeds of the sale of the Trust Preferred Securities will be used to purchase a specific series of Junior Subordinated Debt Securities of the Corporation; (iii) in the case of shares of Common Stock, the number of shares, the initial public offering price and the terms of the Offering and sale thereof; (iv) in the case of Warrants, where applicable, the duration, aggregate amount, offering price, exercise 3 price and detachability; (v) in the case of Debt Warrants, Preferred Stock Warrants and Common Stock Warrants, the applicable type and amount of Securities covered thereby; (vi) in the case of Stock-Index Warrants or Other Warrants, the applicable securities index or other items or indices with respect to which such warrants shall apply and the method of determining the cash value payable in connection with the exercise of such warrants; (vii) in the case of Currency Warrants, the currency to which U.S. dollars will be compared, the method of determining the cash value payable in connection with the exercise of such Currency Warrants, the manner in which such Currency Warrants may be exercised and any restrictions on exercise of such Currency Warrants; and (viii) in the case of Depositary Shares, the fraction of a share of Preferred Stock which each such Depositary Share will represent. The Prospectus Supplement will also contain information, where applicable, about certain U.S. federal income tax, accounting and other considerations relating to, and any listing on a securities exchange of, the Offered Securities covered by the Prospectus Supplement. The Offered Securities are not savings accounts, deposits or other obligations of any bank or nonbank subsidiary of the Corporation and are not insured by the Federal Deposit Insurance Corporation, the Bank Insurance Fund 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 Corporation Securities and the Trust Preferred Securities may be sold directly by the Corporation or a Trust, respectively. The Offered Securities may also be sold through agents designated from time to time, or through underwriters or dealers. If any agents of the Corporation or a Trust, or any underwriters are involved in the sale of the Offered Securities, the names of such agents or underwriters and any applicable fees, commissions or discounts and the net proceeds to the Corporation or a Trust from such sale will be set forth in the applicable Prospectus Supplement. The Corporation may also issue contracts under which the counterparty may be required to purchase Debt Securities, Preferred Stock or Depositary Shares. Such contracts would be issued with the Debt Securities, Preferred Stock, Depositary Shares and/or Warrants in amounts, at prices and on terms to be set forth in the applicable Prospectus Supplement. See "Plan of Distribution." THE DATE OF THIS PROSPECTUS IS , 1997. 4 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 Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities of the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's New York Regional Office, 7 World Trade Center, New York, New York 10048, and Chicago Regional Office, Suite 1400, Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661, and copies of such materials can be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Such information may also be accessed electronically by means of the Commission's home page on the Internet (http://www.sec.gov.). Reports, proxy statements and other information concerning the Corporation can also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. No separate financial statements of the Trusts have been included or incorporated by reference herein. Neither the Trusts nor the Corporation considers such financial statements material to holders of Trust Preferred Securities because (i) all of the voting securities of each Trust will be owned, directly or indirectly, by the Corporation, a reporting company under the Exchange Act, (ii) neither Trust has independent operations but rather each exists for the sole purpose of issuing Common Securities and Preferred Securities representing undivided beneficial interests in the assets of such Trust and investing the proceeds thereof in Junior Subordinated Debt Securities, and (iii) the obligations of the Trusts under the Trust Preferred Securities are fully and unconditionally guaranteed on a subordinated basis by the Corporation to the extent set forth herein and in any applicable Prospectus Supplement. See "Description of the Trusts" and "Description of Guarantees." This Prospectus constitutes part of a registration statement on Form S-3 (together with all amendments and exhibits, the "Registration Statement") filed by the Corporation and the Trusts with the Commission under the Securities Act of 1933, as amended. This Prospectus does not contain all of the information included in the Registration Statement, certain parts of which are omitted in accordance with applicable regulations. For further information pertaining to the Corporation, the Trusts and the Offered Securities, reference is made to the Registration Statement and the exhibits thereto. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed by the Corporation with the Commission are hereby incorporated herein by reference: 1. Annual Report on Form 10-K for the year ended December 31, 1996, filed with the Commission pursuant to Section 13 of the Exchange Act; and 2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997, June 30, 1997 and September 30, 1997; and 3. Current Reports on Form 8-K dated January 27, 1997, July 18, 1997, July 21, 1997 and September 24, 1997. All reports filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the original date of filing of this Registration Statement and prior to the termination of the offering of the Offered Securities shall be deemed to be incorporated by reference into this Prospectus. Any statement contained herein or in a document 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 statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. 2 5 THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS PROSPECTUS IS DELIVERED, ON THE REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH DOCUMENTS). WRITTEN REQUESTS SHOULD BE DIRECTED TO: Republic New York Corporation 452 Fifth Avenue New York, New York 10018 Telephone requests may be directed to (212) 525-6100. No person is authorized to give any information or to make any representations, other than those contained or incorporated by reference in this Prospectus or the Prospectus Supplement, in connection with the offering contemplated hereby, and, if given or made, such information or representations must not be relied upon as having been authorized by the Corporation, the Trusts or any underwriter, dealer or agent. This Prospectus and the Prospectus Supplement do not constitute an offer to sell or a solicitation of an offer to buy any securities other than the registered securities to which they relate and do not constitute an offer to sell or a solicitation of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. Neither the delivery of this Prospectus or the Prospectus Supplement, nor any sale made hereunder or thereunder, shall, under any circumstances, create any implication that there has been no change in the affairs of the Corporation since the date hereof or thereof or that the information contained or incorporated by reference herein or therein is correct as of any time subsequent to such date. 3 6 REPUBLIC NEW YORK CORPORATION The Corporation is a bank holding company incorporated in Maryland. At September 30, 1997, the Corporation had consolidated total assets of $57.8 billion and stockholders' equity of $3.6 billion. Its 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 in the foreseeable future. As of September 30, 1997, the Bank accounted for approximately 90% of the consolidated assets of the Corporation, and for the nine months ended September 30, 1997, the Bank accounted for approximately 90% of the consolidated revenues and 95% of consolidated net income of the Corporation. Based on total assets at December 31, 1996, the date rankings were last available, the Corporation was the eighteenth largest bank holding company in the United States. The Corporation is a legal entity separate and distinct from the Bank and its other subsidiaries. Accordingly, the right of the Corporation, its stockholders and its creditors to participate in any distribution of the assets or earnings of the Bank and any other subsidiary is necessarily subject to the prior claims of the respective creditors of the Bank or such other subsidiary, except to the extent that claims of the Corporation in its capacity as a creditor of the Bank or such other subsidiary may be recognized. The Corporation's principal executive offices are located at 452 Fifth Avenue, New York, New York 10018, and its telephone number is (212) 525-6100. REPUBLIC NATIONAL BANK OF NEW YORK The Bank is a commercial bank which provides a variety of banking and financial services on a worldwide basis to corporations, financial institutions, governments and individuals. At September 30, 1997, the Bank had total assets of $51.4 billion, total deposits of $34.1 billion and total stockholder's equity of $3.3 billion. Based on total deposits at June 30, 1997, the date rankings were last available, the Bank was the sixteenth largest commercial bank in the United States. The Bank is headquartered in New York City with over 86 domestic branch banking offices in New York City, Westchester, Nassau and Suffolk Counties, as well as 8 branches in South Florida. The Bank maintains wholly-owned foreign banking subsidiaries in The Bahamas, Brazil, Canada, Cyprus, Mexico, Russia, Uruguay, Singapore and the Cayman Islands, foreign branch offices in the Caribbean, Europe, Asia and Latin America and representative offices in Europe, Asia and Latin America. The Bank's facilities are supplemented by a network of correspondent banks throughout the world. The Bank also has an Edge Act banking subsidiary in Miami, Florida which engages in off-shore banking activities with non-resident customers, and an Edge Act subsidiary in Wilmington, Delaware. The Bank owns approximately 49% of Safra Republic Holdings S.A., a European-based bank holding company with six banking subsidiaries located in France, Gibraltar, Guernsey, Luxembourg, Monaco and Switzerland. REPUBLIC BUSINESS CREDIT CORPORATION Republic Business Credit Corporation ("RBCC"), formerly known as Republic Factors Corp., is a wholly-owned subsidiary of the Corporation. RBCC operates factoring, asset based lending and accounts receivable management businesses. As a factor, RBCC purchases, without recourse, accounts receivable from approximately 500 clients. The terms of these receivables average less than 60 days and are due from more than 55,000 customers, primarily retailers, located throughout the United States. RBCC also purchases receivables due from customers throughout the world which RBCC refactors through foreign factoring companies which are members of either the International Factors Group or Factors Chain International. Certain clients receive payments for their receivables prior to their collection by RBCC. From time to time, RBCC makes advances in excess of the receivables purchased. These advances may be secured or, in the case of seasonal overadvances, unsecured. Letters of credit accommodations are also provided. In its Asset Based lending activities, RBCC makes working capital loans secured by accounts receivable and inventory. RBCC's receivable management service provides 4 7 clients with back office support allowing them to monitor their accounts receivable and collections on a daily basis. Depending on the individual businesses, RBCC earns commissions, interest and service fees. In addition to RBCC's headquarters at 452 Fifth Avenue New York, New York, it has additional offices located in Los Angeles, California and Charlotte, North Carolina. OTHER FINANCIAL SERVICE SUBSIDIARIES Republic New York Securities Corporation ("RNYSC"), a wholly-owned subsidiary of the Corporation, commenced operations on November 2, 1992 as a full-service securities brokerage primarily serving institutional investors and high net worth individuals. RNYSC is a registered broker-dealer with the Commission and is a member of the National Association of Securities Dealers, Inc. and the New York Stock Exchange, Inc. RNYSC is also registered with the Commodity Futures Trading Commission and the National Futures Association as a futures commission merchant and a commodity trading advisor. As such, RNYSC acts primarily as a commodities broker to the Bank, executing futures contracts and options on futures contracts for the Bank's account. RNYSC trades in futures and options on futures in non-financial commodities, including contracts on energy products, agricultural products and non-precious metals. RNYSC provides execution services in connection with the Bank's activities as a dealer in precious metals, financial instruments and foreign exchange. In addition, RNYSC acts as a futures commission merchant and commodity trading advisor for the general public. RNYSC is a clearing member of the Chicago Mercantile Exchange, Chicago Board of Trade and New York Mercantile Exchange, including its Comex Division. RNYSC is a non-clearing member of the New York Futures Exchange, the Coffee, Sugar and Cocoa Exchange and the Philadelphia Board of Trade. RNYSC has branches in Chicago and Philadelphia. SUPERVISION AND REGULATION General. As a bank holding company registered under the Bank Holding Act of 1956, as amended (the "Act"), the Corporation is subject to substantial regulation and supervision by the Federal Reserve Board (the "FRB"). The Corporation's subsidiary banks are subject to regulation and supervision by federal bank regulatory agencies, including the Office of the Comptroller of the Currency (the "OCC") and the Federal Deposit Insurance Corporation ("FDIC"). Federal banking and other laws impose a number of requirements and restrictions on the operations and activities of depository institutions. In addition, the Corporation and certain of its banking subsidiaries and branches located outside the United States are subject to the requirements of and supervision by the regulatory authorities in the countries in which they operate. FIRREA Pursuant to certain provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), an insured depository institution which is commonly controlled with another insured depository institution is generally liable for any loss incurred, or reasonably anticipated to be incurred, by the FDIC in connection with the default of such commonly controlled institution, or any assistance provided by the FDIC to such commonly controlled institution, which is in danger of default. The term "default" is defined to mean the appointment of a conservator or receiver for such institution, and "in danger of default" is defined generally as the existence of certain conditions indicating that a default is likely to occur in the absence of regulatory assistance. Thus, the Bank could incur liability to the FDIC pursuant to this statutory provision in the event of the default of any of the other insured depository institutions owned or controlled by the Corporation. Such liability is subordinated in right of payment to deposit liabilities, secured obligations, any other general or senior liability, and any obligation subordinated to depositors or other general creditors, other than obligations owed to any affiliate of the depository institution (with certain exceptions) and any obligations to shareholders in such capacity. 5 8 In its resolution of the problems of an insured depository institution in default or in danger of default, the FDIC is generally required to satisfy its obligations to insured depositors at the least possible cost to the deposit insurance fund. In addition, the FDIC may not take any action that would have the effect of increasing the losses to the deposit insurance fund by protecting depositors for more than the insured portion of deposits (generally $100,000) or creditors other than depositors. The Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA") authorized the FDIC to settle all uninsured and unsecured claims in the insolvency of an insured bank by making a final settlement payment after the declaration of insolvency. Such a payment would constitute full payment and disposition of the FDIC's obligations to claimants. The rate of such final settlement payment is to be a percentage rate determined by the FDIC reflecting an average of the FDIC's receivership recovery experience. FDICIA In general, FDICIA subjects banks to significantly increased regulation and supervision. Among other things, FDICIA requires federal bank regulatory authorities to take "prompt corrective action" in respect of banks that do not meet minimum capital requirements. FDICIA establishes five capital tiers: well capitalized, adequately capitalized, undercapitalized, significantly undercapitalized, and critically undercapitalized. Under the Comptroller's regulations, a bank is defined to be well capitalized if it maintains a risk-adjusted Tier 1 capital ratio of at least 6%, a risk-adjusted total capital ratio of at least 10% and a Tier 1 leverage capital ratio of at least 5%, and is not otherwise in a "troubled condition" as specified by its appropriate federal regulatory agency. A bank is defined to be adequately capitalized if it maintains a risk-adjusted Tier 1 ratio of at least 4%, a risk-adjusted total capital ratio of at least 8%, and a Tier 1 leverage ratio of at least 4% (3% for certain highly rated institutions), and does not otherwise meet the well capitalized definition. The three undercapitalized categories are based upon the amount by which the bank falls below the ratios applicable to adequately capitalized institutions. A depository institution may be deemed to be in a capitalization category that is lower than is indicated by its actual capital position if it receives an unsatisfactory examination rating. The capital categories are determined solely for the purposes of applying FDICIA's prompt corrective action ("PCA") provisions, as discussed below, and such capital categories may not constitute an accurate representation of the overall financial condition or prospects of the Bank. Under FDICIA's PCA system, a bank in the undercapitalized category must submit a capital restoration plan guaranteed by its parent company. The liability of the parent company under any such guarantee is limited to the lesser of 5% of the bank's assets at the time it became undercapitalized or the amount needed to bring the bank into compliance with all capital standards applicable to the bank as of the time the bank fails to comply with the plan. A bank in the undercapitalized category is also subject to limitations in numerous areas including, but not limited to, asset growth, acquisitions, branching, new business lines, acceptance of brokered deposits and borrowings from the Federal Reserve System. Progressively more burdensome restrictions are applied to banks in the undercapitalized category that fail to submit or implement a capital plan and to banks that are in the significantly undercapitalized or critically undercapitalized categories. In addition, a bank's primary federal banking agency is authorized to downgrade the bank's capital category to the next lower category upon a determination that the bank is in an unsafe or unsound condition or is engaged in an unsafe or unsound practice. An unsafe or unsound practice can include receipt by the institution of a rating on its most recent examination of 3 or worse (on a scale from 1 (best) to 5 (worst)), with respect to its asset quality, management, earnings or liquidity. Undercapitalized banks are subject to limitations on the payment of dividends and on offering interest rates on deposits higher than the prevailing rate in its market; in addition, "pass through" deposit insurance coverage may not be available for certain employee benefit accounts. Significantly undercapitalized banks may be subject to a number of requirements and restrictions, including orders to sell sufficient voting stock to become adequately capitalized, requirements to reduce total assets, and cessation of receipt of deposits from correspondent banks. Critically undercapitalized institutions 6 9 (which are defined to include institutions which still have a positive net worth) are generally subject to the mandatory appointment of a receiver or conservator. FDICIA and the regulations issued thereunder also have (i) limited the use of brokered deposits to well capitalized banks and adequately capitalized banks that have received waivers from the FDIC, (ii) established restrictions on the permissible investments and activities of FDIC insured state chartered banks and their subsidiaries, (iii) implemented uniform real estate lending rules, (iv) prescribed standards to limit the risks posed by credit exposure between banks, (v) revised risk-based capital rules to include components for measuring the risk posed by interest rate changes, (vi) amended various consumer banking laws, (vii) increased restrictions on loans to a bank's insiders, (viii) established standards in a number of areas to assure bank safety and soundness, and (ix) implemented additional requirements for institutions that have $500 million or more in total assets with respect to annual independent audits, audit committees, and management reports related to financial statements, internal controls and compliance with designated laws and regulations. FDICIA also directs that each federal banking agency prescribe, and each such agency has prescribed, new safety and soundness standards for depository institutions and depository institution holding companies relating to internal controls, information systems, internal audit systems, loan documentation, credit underwriting, interest rate exposure, asset growth, compensation, a maximum rate of classified assets to capital, minimum earnings sufficient to absorb losses, a minimum ratio of market value to book value for publicly traded shares and other standards which the agencies deem appropriate. In general, the standards are expected to increase the regulatory burden and expense of conducting the banking business. DEPOSIT INSURANCE The Bank's deposits are insured by and are subject to FDIC insurance assessments. The FDIC's deposit insurance assessments have moved under FDICIA from a flat-rate system to a risk-based system. The risk-based system places a bank in one of nine risk categories, principally on the basis of its capital level and an evaluation of the bank's risk to the insurance fund, and bases premiums on the probability of loss to the FDIC with respect to each individual bank. On November 26, 1996, the FDIC Board of Directors voted to retain the existing Bank Insurance Fund ("BIF") premium schedule for the first semiannual period of 1997. The annual premium schedule ranges from 0 basis points to 27 basis points. The imposition of the BIF premium schedule will not have a material effect on the Bank's earnings. It is, however, possible that the BIF deposit insurance premiums will be revised by the FDIC in the future. In October 1996 the Deposit Insurance Funds Act of 1996 (the "Funds Act") was enacted. The Funds Act authorizes the Financing Corporation ("FICO") to levy assessments on BIF-assessable deposits and deposits assessable by the Savings Association Insurance Fund ("SAIF") commencing January 1, 1997. The FICO assessment rate currently is approximately 1.30 basis points annually for BIF-assessable deposits and 6.48 basis points annually for SAIF-assessable deposits. These rates may be adjusted quarterly. By law, the FICO rate on BIF-assessable deposits must be one-fifth the rate on SAIF-assessable deposits until the earlier of the merger of the insurance funds or January 1, 2000. The Bank's deposits include both BIF-assessable deposits and SAIF-assessable deposits. The SAIF-assessable deposits are a result of the Corporation's acquisitions of the deposits of savings associations. Because the Corporation has both BIF-assessable and SAIF-assessable deposits, it is subject to both assessment rates. The amounts payable to FICO by the Corporation are in addition to other FDIC deposit insurance premiums and thus represent an increased cost to the Corporation. DIVIDENDS The Corporation's ability to pay dividends is dependent upon its receipt of dividends from its subsidiaries and on its earnings from investments. The Bank may use only capital surplus that represents earnings, not paid-in capital, when calculating permissible dividends. The approval of the 7 10 OCC is required if the total of all dividends declared or proposed to be declared by the Bank in any calendar year exceeds the Bank's net profits, as defined, for that year, combined with its retained net profits for the preceding two calendar years. The OCC also has authority to prohibit a national bank from engaging in what, in its opinion, constitutes an unsafe or unsound practice in conducting its business. The payment of dividends could, depending upon the financial condition of the Bank, be deemed to constitute such an unsafe or unsound practice. PRINCIPAL STOCKHOLDER At September 30, 1997, there were 54,753,009 shares of Common Stock of the Corporation outstanding. As of such date, Edmond J. Safra, through his ownership of all of the outstanding shares of Saban S.A., which owns directly and indirectly shares of the Corporation's Common Stock, and one other entity, beneficially owned 15,258,812 shares of Common Stock, representing approximately 27.9% of the Corporation's outstanding Common Stock. Mr. Safra, through Saban S.A. and a subsidiary thereof, has approval of the Federal Reserve, through January 28, 1998, 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 ownership of approximately 31.0% of the Corporation's outstanding Common Stock. The Corporation knows of no other stockholder who owned, as of September 30, 1997, beneficially or of record, more than 10% of its outstanding voting securities. CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
YEARS ENDED DECEMBER 31, NINE MONTHS ---------------------------------------- ENDED 1992 1993 1994 1995 1996 SEPTEMBER 30, 1997 ---- ---- ---- ---- ---- ------------------ Excluding interest on deposits..... 1.66x 1.94x 1.96x 1.79x 1.98x 1.88x Including interest on deposits..... 1.26 1.39 1.37 1.24 1.31 1.30
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. CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
YEARS ENDED DECEMBER 31, NINE MONTHS ---------------------------------------- ENDED 1992 1993 1994 1995 1996 SEPTEMBER 30, 1997 ---- ---- ---- ---- ---- ------------------ Excluding interest on deposits..... 1.55x 1.78x 1.79x 1.63x 1.84x 1.80x Including interest on deposits..... 1.23 1.34 1.32 1.21 1.28 1.28
For the purpose of computing the consolidated ratios of earnings to combined fixed charges and preferred stock dividends, earnings represent consolidated income before income taxes plus fixed charges. Fixed charges and preferred stock dividends 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) and the pre-tax equivalent of preferred stock dividends. Fixed charges and preferred stock dividends including interest on deposits consist of the foregoing items plus interest on deposits. 8 11 DESCRIPTION OF THE TRUSTS Republic New York Capital III and Republic New York Capital IV are each a statutory business trust formed under Delaware law pursuant to (i) original declarations of trust executed by the Corporation, as Depositor, Bankers Trust (Delaware), as Delaware Trustee, and the administrative trustees named therein and (ii) the filing of certificates of trust with the Delaware Secretary of State on November 19, 1997. The declaration of trust of each Trust will be amended and restated in its entirety (as so amended and restated, the "Declaration") substantially in the form filed as an exhibit to the Registration Statement of which this Prospectus forms a part. The Trusts exist for the exclusive purpose of (i) issuing and selling the Trust Securities, (ii) using the proceeds from sale of the Trust Securities to acquire Junior Subordinated Debt Securities, (iii) making Distributions, and (iv) engaging in only those other activities necessary, advisable or incidental thereto. Holders of the Trust Securities will have no preemptive or similar rights. The Trusts may not borrow money or issue debt or mortgage or pledge any of their assets. Accordingly, the Junior Subordinated Debt Securities will be the sole assets of the Trusts, and payments under the Junior Subordinated Debt Securities and the payment provisions under the Junior Subordinated Indenture (as defined herein) will be the sole revenues of the Trusts. All of the Common Securities 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 Trust Preferred Securities, except that upon the occurrence and continuance of an Event of Default (as defined herein) under the corresponding Declaration resulting from a Debenture Event of Default (as defined herein) 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 Trust Preferred Securities. See "Description of Trust Preferred Securities -- Subordination of Common Securities." If and when offered and sold, the Corporation will acquire the Common Securities in an aggregate Liquidation Amount equal to 3% of the total capital of the Trust. Each Trust has a term of 54 years, but may be terminated earlier as provided in the relevant Declaration. Each Trust's business and affairs are conducted by its trustees, each initially appointed by the Corporation, as Depositor. Unless otherwise set forth in the applicable Prospectus Supplement, the Trustees for each Trust are Bankers Trust Company, as Property Trustee, Bankers Trust (Delaware), as 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 will also act as trustee under the Guarantee Agreements and the Junior Subordinated Indenture. The holder of the Common Securities of the Trust, or the holders of a majority in Liquidation Amount of the Trust Preferred Securities if an Event of Default under the relevant 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 Trust Preferred 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 Bankers Trust Company are governed by the relevant Declaration and Guarantee Agreement, the Junior Subordinated Indenture and the Trust Indenture Act of 1933, as amended (the "Trust Indenture Act"). Pursuant to the expense provisions of the Junior Subordinated Indenture, the Corporation will pay, directly or indirectly, all ongoing costs, expenses and liabilities of the Trusts. See "Description of Trust Preferred Securities -- Expenses and Taxes." The office of the Delaware Trustee in the State of Delaware is 1011 Centre Road, Suite 200, Wilmington, Delaware 19805-1266. The principal executive office of each Trust is care of: Republic New York Corporation, 452 Fifth Avenue, New York, New York 10018, Telephone: (212) 525-6100, Attention: Office of the Corporate Secretary. APPLICATION OF PROCEEDS Except as may otherwise be provided in the Prospectus Supplement, the net proceeds from the sale of the Corporation Securities will be used for general corporate purposes. Pending ultimate application, the net proceeds may be used to make short-term investments or reduce short-term borrowings. Unless 9 12 otherwise specified in the Prospectus Supplement, each Trust will use all of the proceeds from the sale of Trust Preferred Securities to purchase Junior Subordinated Debt Securities of the Corporation. Additional information on the application of proceeds from the sale of Offered Securities offered hereby may be set forth in the Prospectus Supplement relating to such Offered Securities. Management anticipates that the Corporation may, from time to time, engage in additional financings, which may include the issuance of debt and/or equity securities otherwise than pursuant to this Prospectus. 10 13 DESCRIPTION OF DEBT SECURITIES The following description of the Debt Securities sets forth certain general terms and provisions of the Indentures under which the Debt Securities are to be issued. The following summaries of certain provisions of the Indentures and the Debt Securities do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Indentures and the form of Debt Securities, respectively, including the definition therein of certain terms. The Indentures are filed as exhibits to the Registration Statement of which this Prospectus is a part. The Indentures are also available for inspection at the Corporate Trust Office of Citibank, N.A. ("Citibank") at 120 Wall Street, 13th Floor, New York, New York 10043. The particular terms of each issue of Debt Securities, as well as any modifications or additions to such general terms that may apply in the case of such Debt Securities, will be described in the Prospectus Supplement relating to such Debt Securities. Accordingly, for a description of the terms of a particular issue of Debt Securities, reference must be made to both the Prospectus Supplement relating thereto and to the following description. THE INDENTURES Senior Securities have been and, if issued in the future, will be issued under an Indenture dated as of May 15, 1986, as supplemented by a First Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental Indenture dated as of April 15, 1993, between the Corporation and Citibank, as successor Trustee (said Indenture as so supplemented, the "Senior Indenture"). The Senior Indenture is filed as an exhibit to the Registration Statement of which this Prospectus is a part. Subordinated Securities have been and, if issued in the future, may be issued under either an Indenture dated as of May 15, 1986, as supplemented by a First Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental Indenture dated as of April 15, 1993, between the Corporation and Citibank, as successor Trustee (said Indenture as so supplemented, the "1986 Subordinated Indenture") or a separate Indenture dated as of October 15, 1992 and a First Supplemental Indenture dated as of April 15, 1993 between the Corporation and Citibank, as Trustee (the "1992 Subordinated Indenture"). The 1986 Subordinated Indenture and the 1992 Subordinated Indenture are filed as exhibits to the Registration Statement of which this Prospectus is a part. The Senior Indenture, the 1986 Subordinated Indenture and the 1992 Subordinated Indenture are sometimes referred to herein collectively as the "Indentures" and individually as an "Indenture". The existence of both the 1986 Subordinated Indenture and the 1992 Subordinated Indenture reflects changes in the treatment of subordinated debt securities for purposes of regulatory capital. In 1992, the Federal Reserve Board issued interpretations of its capital regulations indicating, among other things, that subordinated debt of bank holding companies issued on or after September 4, 1992 is includable in capital for calculation of regulatory capital ratios only if the subordination of the debt meets certain specified criteria and if the debt may be accelerated only for bankruptcy, insolvency and similar matters and is not subject to certain covenants, including a covenant prohibiting the sale of any major subsidiary. Following this interpretation, the Corporation entered into the 1992 Subordinated Indenture since it appeared that the terms of the 1986 Subordinated Indenture might not satisfy these requirements. Accordingly, to obtain the most favorable treatment for regulatory capital purposes the 1992 Subordinated Indenture contains subordination and acceleration provisions intended to be consistent with the 1992 Federal Reserve Board interpretations and does not contain any covenant restricting the ability of the Corporation to dispose of or cause the issuance of stock of the Bank or addressing any other matter prohibited by the Federal Reserve Board's interpretations. See "Disposition or Issuance of Capital Stock of the Bank" and "Events of Default, Notice and Waiver." There is no requirement that future issues of debt securities of the Corporation be issued under any of the Indentures, and the Corporation is free to employ other indentures or documentation, containing provisions different from those included in the Indentures or applicable to one or more issues of Debt Securities, in connection with future issues of such other debt securities. 11 14 GENERAL TERMS OF DEBT SECURITIES Each Indenture provides that the Debt Securities issued thereunder may be issued without limit as to aggregate principal amount, in one or more series, in each case as established from time to time in or pursuant to authority granted by a resolution of the Board of Directors of the Corporation or as established in one or more indentures supplemental to such Indenture. Each Indenture also provides that there may be more than one Trustee under such Indenture, each with respect to one or more series of Debt Securities. Any Trustee under any Indenture may resign or be removed with respect to one or more series of Debt Securities issued under such Indenture, and a successor Trustee may be appointed to act with respect to such series. In the event that two or more persons are acting as Trustee with respect to different series of Debt Securities issued under the same Indenture, each such Trustee shall be a Trustee of a trust under such Indenture separate and apart from the trust administered by any other such Trustee and, except as otherwise indicated herein, any action described herein to be taken by the Trustee may be taken by each such Trustee with respect to, and only with respect to, the one or more series of Debt Securities for which it is Trustee under such Indenture. Reference is made to the Prospectus Supplement relating to the Debt Securities to be offered for the following terms thereof: (1) the title of the Debt Securities; (2) any limit on the aggregate principal amount of the Debt Securities; (3) the purchase price of the Debt Securities (expressed as a percentage of the principal amount); (4) the date or dates on which the principal (and premium, if any) of the Debt Securities will be payable; (5) the rate or rates (which may be fixed or variable), or the method by which such rate or rates shall be determined, at which the Debt Securities will bear interest, if any; (6) the date or dates from which any such interest will accrue, the date or dates on which any such interest will be payable and the Regular Record Dates for such Interest Payment Dates; (7) the place or places where the principal of (and premium, if any) and interest, if any, on the Debt Securities will be payable; (8) the period or periods within which, the price or prices at which and the terms and conditions upon which the Debt Securities may be redeemed, as a whole or in part, at the option of the Corporation, if the Corporation is to have such an option; (9) the obligation, if any, of the Corporation to redeem or purchase the Debt Securities pursuant to any sinking fund or analogous provision or at the option of a holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which the Debt Securities will be redeemed or purchased, as a whole or in part, pursuant to such obligation; (10) the currency or currencies in which the Debt Securities are denominated, which may be in U.S. dollars, a foreign currency or units of two or more foreign currencies or a composite currency or currencies; (11) whether the amount of payments of principal of (and premium, if any) or interest, if any, on the Debt Securities may be determined with reference to an index, formula or other method (which index, formula or method may, but need not be, based on a currency, currencies, currency unit or units or composite currency or currencies) and the manner in which such amounts shall be determined; (12) any additions or deletions in the terms of the Debt Securities with respect to the Events of Default set forth in the respective Indentures; (13) the terms, if any, upon which the Debt Securities may be convertible into Common Stock or Preferred Stock of the Corporation and the terms and conditions upon which such conversion will be effected, including the initial conversion price or rate, the conversion period and any other provision in addition to or in lieu of those described herein; (14) whether the Debt Securities will be issued in certificated or book-entry form; and (15) any other terms of the Debt Securities not inconsistent with the provisions of the respective Indentures. Principal, premium, if any, and interest, if any, will be payable, and the Debt Securities will be transferable, in the manner described in the applicable Prospectus Supplement relating to such Debt Securities. Debt Securities may be issued under the Indentures as Original Issue Discount Securities to be offered and sold at a substantial discount from the principal amount thereof. Special federal income tax, accounting and other considerations applicable thereto will be described in the applicable Prospectus Supplement. 12 15 Unless otherwise provided with respect to a series of Debt Securities, the Debt Securities will be issued only in registered form without coupons in denominations of $1,000 and integral multiples thereof. CERTIFICATED SECURITIES Except as may be set forth in the applicable Prospectus Supplement, Debt Securities will not be issued in definitive form. If, however, Debt Securities are to be issued in definitive form, no service charge will be made for any transfer or exchange of Debt Securities issued as Certificated Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. MERGER The Indentures provide that the Corporation may not consolidate with or merge into another Person or participate in a transaction in which all of the issued and outstanding shares of its Capital Stock are acquired by another Person by a vote of the Corporation's stockholders or sell, convey, exchange, transfer or lease its properties and assets substantially as an entirety to any Person unless (a) such Person shall be a corporation organized under the laws of any domestic or foreign jurisdiction and shall expressly assume the due and punctual payment of the principal of and interest (and premium, if any) on the Debt Securities and the performance of all of the covenants and conditions of the Indentures and (b) 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 happened and be continuing. DISPOSITION OR ISSUANCE OF CAPITAL STOCK OF THE BANK Senior Indenture and 1986 Subordinated Indenture. The Senior Indenture and the 1986 Subordinated Indenture prohibit the issuance, sale or other disposition of Capital Stock, or securities convertible into, or options, warrants or rights to acquire, Capital Stock of the Bank or of any Subsidiary which owns shares of Capital Stock, or securities convertible into, or options, warrants or rights to acquire, Capital Stock of the Bank, with the following exceptions: (a) dispositions of directors' qualifying shares; (b) sales or other dispositions for fair market value, if, after giving effect to such disposition and to conversion of any shares or securities convertible into Capital Stock, the Corporation would own directly or indirectly not less than 80% of each class of the Capital Stock of the Bank; (c) sales or other dispositions made in compliance with an order of a court or regulatory authority of competent jurisdiction; (d) sales by the Bank of its Capital Stock, or securities convertible into, or options, warrants or rights to acquire, its Capital Stock, to its stockholders so long as prior to such sale the Corporation owned securities of the same class and the sale does not reduce the percentage of securities of such class owned by the Corporation; and (e) any issuance of Capital Stock, or securities convertible into, or options, warrants or rights to acquire, Capital Stock, of the Bank or any Subsidiary of the Corporation or another Subsidiary. 1992 Subordinated Indenture. Unlike the Senior Indenture and the 1986 Subordinated Indenture, the 1992 Subordinated Indenture does not prohibit or limit the issuance, sale or other disposition of Capital Stock of the Bank, or securities convertible into, or options, warrants or rights to acquire, Capital Stock of the Bank or of any Subsidiary which owns shares of Capital Stock, or securities convertible into, or options, warrants or other rights to acquire, Capital Stock of the Bank. Under the Federal Reserve Board's interpretations referred to above, a limitation on the disposition or issuance of Capital Stock of the Bank would prevent the Subordinated Securities issued under the 1992 Subordinated Indenture from being included in capital for calculation of regulatory capital ratios. See "The Indentures" above. 13 16 EVENTS OF DEFAULT, NOTICE AND WAIVER Senior Indenture and 1986 Subordinated Indenture. The Senior Indenture and the 1986 Subordinated Indenture provide that the following events are Events of Default thereunder with respect to any series of Debt Securities issued thereunder: (a) default for 30 days in the payment of any installment of interest on any Debt Security of such series; (b) default in the payment of the principal of (or premium, if any, on) any Debt Security of such series at its Maturity; (c) default in making a sinking fund payment or analogous obligation, if any, or payment of the purchase price of any Debt Security of such series, when and as the same shall be due and payable by the terms of the Debt Securities of such series; (d) default in the performance of any other covenant of the Corporation in such Indentures (other than a covenant included in such Indentures solely for the benefit of a series of Debt Securities other than such series), continued for 90 days after written notice as provided in such Indenture; (e) certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Corporation or its property or the Bank; and (f) any other Event of Default provided with respect to a particular series of Debt Securities. No Event of Default with respect to a particular series of Debt Securities (except the events described in clause (e) above) necessarily constitutes an Event of Default with respect to any other series of Debt Securities issued under the same or another Indenture. The Trustee may withhold notice to the Holders of any series of Debt Securities of any default with respect to such series (except a default in the payment of the principal of (or premium, if any) or interest, if any, on any Debt Security of such series or in the payment of any sinking fund installment or analogous payment obligation or any payment of the purchase price of any Debt Security of such series) if the board of directors or Responsible Officers of the Trustee consider such withholding to be in the interest of such Holders. If an Event of Default described in clause (a), (b), (c) or (f) above with respect to Debt Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Debt Securities of that series may declare the principal amount (or, if the Debt Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Debt Securities of that series to be due and payable immediately. If an Event of Default described in clause (d) or (e) above occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of all the Debt Securities then Outstanding under the Senior Indenture or the 1986 Subordinated Indenture, as the case may be ("Senior/Old Subordinated Indenture Securities"), may declare the principal amount (or, if any such Senior/Old Subordinated Indenture Securities are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Senior/Old Subordinated Indenture Debt Securities to be due and payable immediately. However, at any time after such a declaration of acceleration with respect to Debt Securities of such series (or of all Outstanding Senior/Old Subordinated Indenture Securities, as the case may be) has been made, but before a judgment or decree for payment of the money due has been obtained by the Trustee prior to the Stated Maturity thereof, the Holders of a majority in principal amount of Outstanding Debt Securities of such series (or of all Outstanding Senior/Old Subordinated Indenture Securities, as the case may be) may, subject to certain conditions, rescind and annul such acceleration if all Events of Default, other than the non-payment of accelerated principal (or specified portion thereof), with respect to Debt Securities of such series (or of all Outstanding Senior/Old Subordinated Indenture Securities, as the case may be) have been cured or waived as provided in the Senior Indenture and the 1986 Subordinated Indenture. The Senior Indenture and the 1986 Subordinated Indenture also provide that the Holders of not less than a majority in principal amount of the Debt Securities of a series (or of all Outstanding Senior/Old Subordinated Indenture Securities, as the case may be) may, subject to certain limitations, waive any past default and its consequences. Reference is made to the Prospectus Supplement relating to any series of Debt Securities which are Original Issue Discount Securities for the particular provisions relating to acceleration of a portion of the principal amount of such Original Issue Discount Securities 14 17 upon the occurrence of an Event of Default and the continuation thereof. Within 120 days after the close of each fiscal year, the Corporation must file with the Trustee a statement, signed by specified officers, stating whether or not such officers have knowledge of any default, and, if so, specifying each such default and the nature and status thereof. Subject to provisions in the Senior Indenture and the 1986 Subordinated Indenture relating to its duties in case of default, the Trustee thereunder is under no obligation to exercise any of its rights or powers under such Indentures at the request, order or direction of any Holders of any series of Outstanding Senior/Old Subordinated Indenture Securities, unless such Holders shall have offered to the Trustee thereunder reasonable security or indemnity. Subject to such provisions for indemnification and certain limitations contained in the Senior Indenture and the 1986 Subordinated Indenture, the Holders of not less than a majority in principal amount of the Outstanding Debt Securities of a series (or of all the Outstanding Senior/Old Subordinated Indenture Securities, as the case may be) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee thereunder, or of exercising any trust or power conferred upon such Trustee. 1992 Subordinated Indenture. The 1992 Subordinated Indenture provides that the following events are the only Events of Default thereunder with respect to any series of Subordinated Securities issued thereunder: (a) default for 30 days in the payment of any installment of interest on any Subordinated Security of such series; (b) default in the payment of the principal of (or premium, if any, on) any Subordinated Security of such series at its Maturity; (c) default in making a sinking fund payment or analogous obligation, if any, or payment of the purchase price of any Subordinated Security of such series, when and as the same shall be due and payable by the terms of the Subordinated Securities of such series; (d) certain events relating to the bankruptcy, insolvency or reorganization of the Corporation or the appointment of a receiver for the Bank; and (e) any other Event of Default provided with respect to a particular series of Subordinated Securities. No Event of Default with respect to a particular series of Subordinated Securities other than the event described in clause (d) above necessarily constitutes an Event of Default with respect to any other series of Subordinated Securities issued under the same or another Indenture. Unless provided with respect to a particular series of Subordinated Securities issued under the 1992 Subordinated Indenture, there will be no right of acceleration of the payment of principal of the Subordinated Securities issued under the 1992 Subordinated Indenture upon a default in the payment of principal or interest on such Subordinated Securities or in the performance of any covenant or agreement contained in such Subordinated Securities or in the 1992 Subordinated Indenture. Under the 1992 Subordinated Indenture, payment of principal of the Subordinated Securities may only be accelerated upon the occurrence of certain events relating to the bankruptcy, insolvency or reorganization of the Corporation or the appointment of a receiver for the Bank. Inclusion of any rights of acceleration other than those set forth above would prevent the Subordinated Securities issued under the 1992 Subordinated Indenture from being included as regulatory capital. See "The Indentures" above. As a result, the Events of Default under the 1992 Subordinated Indenture are narrower than those under the Senior Indenture and the 1986 Subordinated Indenture. As with the Senior Indenture and the 1986 Subordinated Indenture, the Trustee may withhold notice to the Holders of any series of Subordinated Securities of any default with respect to such series (except a default in the payment of the principal of (or premium, if any) or interest, if any, on any Subordinated Security of such series or in the payment of any sinking fund installment or analogous payment obligation or any payment of the purchase price of any security of such series) if the board of directors or Responsible Officers of the Trustee consider such withholding to be in the interest of such Holders. If an Event of Default described in clause (e) above with respect to Subordinated Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Subordinated Securities of that series may declare the principal amount (or, if the Subordinated Securities of that series are Original 15 18 Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Subordinated Securities of that series to be due and payable immediately. If an Event of Default described in clause (d) above occurs and is continuing, then in each such case the Trustee or the Holders of not less than 25% in principal amount of all the Subordinated Securities then Outstanding under the 1992 Subordinated Indenture ("New Subordinated Indenture Securities") may declare the principal amount (or, if any such New Subordinated Indenture Securities are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the New Subordinated Indenture Securities to be due and payable immediately. However, at any time after such a declaration of acceleration with respect to Subordinated Securities of such series (or of all Outstanding New Subordinated Indenture Securities, as the case may be) has been made, but before a judgment or decree for payment of the money due has been obtained by the Trustee prior to the Stated Maturity thereof, the Holders of a majority in principal amount of Outstanding Subordinated Securities of such series (or of all Outstanding New Subordinated Indenture Securities, as the case may be) may, subject to certain conditions, rescind and annul such acceleration if all Events of Default with respect to Subordinated Securities of such series (or of all Outstanding New Subordinated Indenture Securities, as the case may be) have been cured or waived as provided in such Indenture. The 1992 Subordinated Indenture also provides that the Holders of not less than a majority in principal amount of the Outstanding New Subordinated Indenture Securities of a series (or of all Outstanding New Subordinated Indenture Securities, as the case may be) may, subject to certain limitations, waive any past Events of Default and their consequences. Reference is made to the Prospectus Supplement relating to any series of Subordinated Securities which are Original Issue Discount Securities for the particular provisions relating to acceleration of a portion of the principal amount of such Original Issue Discount Securities upon the occurrence of an Event of Default and the continuation thereof. Within 120 days after the close of each fiscal year, the Corporation must file with the Trustee a statement, signed by a specified officer, stating whether or not such officer has knowledge of any default, and, if so, specifying each such default and the nature and status thereof. Subject to provisions in the 1992 Subordinated Indenture relating to its duties in case of default, the Trustee thereunder is under no obligation to exercise any of its rights or powers under such Indenture at the request, order or direction of any Holders of any series of Outstanding New Subordinated Indenture Securities, unless such Holders shall have offered to the Trustee thereunder reasonable security or indemnity. Subject to such provisions for indemnification and certain limitations contained in the 1992 Subordinated Indenture, the Holders of not less than a majority in principal amount of the Outstanding Subordinated Securities of a series (or of all the Outstanding Indenture Securities, as the case may be) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee thereunder, or of exercising any trust or power conferred upon such Trustee. MODIFICATION OF THE INDENTURES Senior Indenture and 1986 Subordinated Indenture. Except as to modifications not adverse to the Holders of any series of Debt Securities issued thereunder, modifications and amendments of the Senior Indenture and the 1986 Subordinated Indenture may be made only with the consent of the Holders of not less than a majority in aggregate principal amount of all Outstanding Senior/Old Subordinated Indenture Securities which are affected by the modification or amendment; provided that no such modification or amendment may, without the consent of the Holder of each such Debt Security affected thereby, (a) change the Stated Maturity of the principal of, or any installment of interest (or premium, if any) on, any Debt Security; (b) reduce the principal amount of, or the rate of interest on, or any premium payable on redemption of, such Debt Security, or reduce the amount of principal of an Original Issue Discount Security that would be due and payable upon declaration of acceleration of the Maturity thereof or would be provable in bankruptcy; (c) change the Place of Payment, or the coin or currency, for payment of principal of, premium, if any, or interest on any such Debt Security; (d) impair the right to institute suit for the enforcement of any payment on or with respect to any such Debt Security; (e) reduce the above-stated percentage of Outstanding Debt Securities of any series 16 19 necessary to modify or amend such Indentures; (f) subordinate the indebtedness evidenced by the Senior Securities to any indebtedness of the Corporation, or subordinate the indebtedness evidenced by the Subordinated Securities issued thereunder to any indebtedness of the Corporation other than Senior Indebtedness (as defined therein); or (g) modify the foregoing requirements other than to increase such percentage or add to the amendments which may not be made without the consent of the Holder of each Debt Security affected thereby. However, the Holders of a majority in aggregate principal amount of all of the Outstanding Senior/Old Subordinated Indenture Securities may waive compliance by the Corporation with the restrictions described under the subheading "Disposition or Issuance of Capital Stock of the Bank". 1992 Subordinated Indenture. Except as to modifications not adverse to the Holders of any series of Subordinated Securities issued thereunder, modifications and amendments of the 1992 Subordinated Indenture may be made only with the consent of the Holders of not less than a majority in aggregate principal amount of all Outstanding New Subordinated Indenture Securities which are affected by the modification or amendment; provided that no such modification or amendment may, without the consent of the Holder of each such Subordinated Security affected thereby, (a) change the Stated Maturity of the principal of, or any installment of interest (or premium, if any) on, any Subordinated Security; (b) reduce the principal amount of, or the rate of interest on, or any premium payable on redemption of, such Subordinated Security, or reduce the amount of principal of an Original Issue Discount Security that would be due and payable upon declaration of acceleration of the Maturity thereof or would be provable in bankruptcy; (c) change the Place of Payment, or the coin or currency, for payment of principal of, premium, if any, or interest on any such Subordinated Security; (d) impair the right to institute suit for the enforcement of any payment on or with respect to any such Subordinated Security; (e) reduce the above-stated percentage of Outstanding Securities of any series necessary to modify or amend such Indenture; (f) subordinate the indebtedness evidenced by the Subordinated Securities issued thereunder to any indebtedness of the Corporation other than Senior Indebtedness (as defined therein); or (g) modify the foregoing requirements other than to increase such percentage or add to the amendments which may not be made without the consent of the Holder of each Subordinated Security affected thereby. SENIOR SECURITIES Senior Securities are to be issued under the Senior Indenture. Each series of Senior Securities will constitute Senior Indebtedness and will rank equally with each other series of Senior Securities and other Senior Indebtedness. All subordinated debt (including, but not limited to, all Subordinated Securities issued under the 1986 Subordinated Indenture and the 1992 Subordinated Indenture) will be subordinated to the Senior Securities and other Senior Indebtedness (as defined in the relevant Indenture). SUBORDINATION OF SUBORDINATED SECURITIES 1986 Subordinated Indenture. The payment of the principal of and interest on the Subordinated Securities issued under the 1986 Subordinated Indenture will be subordinated in right of payment, as set forth in the 1986 Subordinated Indenture, to the prior payment in full of all Senior Indebtedness (as defined therein) of the Corporation, whether outstanding on the date of the 1986 Subordinated Indenture or thereafter incurred. Senior Indebtedness is defined in the 1986 Subordinated Indenture as (a) the principal of and premium, if any, and unpaid interest on indebtedness for money borrowed, (b) purchase money and similar obligations, (c) obligations under capital leases, (d) 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, (e) renewals, extensions and refunding of any such indebtedness and (f) interest or obligations in respect of any such indebtedness accruing after the commencement of any insolvency or bankruptcy proceedings; unless, in each case, the instrument by which the Corporation incurred, assumed or guaranteed such indebtedness expressly provides that such indebtedness is subordinate or junior in right of payment to 17 20 any other indebtedness of the Corporation. At September 30, 1997, the aggregate Senior Indebtedness of the Corporation, as defined in the 1986 Subordinated Indenture, was approximately $720 million. 1992 Subordinated Indenture. The payment of the principal of and interest on the Subordinated Securities issued under the 1992 Subordinated Indenture will be subordinated as set forth in the 1992 Subordinated Indenture to the Senior Indebtedness of the Corporation, whether outstanding on the date of the 1992 Subordinated Indenture or thereafter incurred. Senior Indebtedness is defined in the 1992 Subordinated Indenture to include both obligations defined as Senior Indebtedness in the 1986 Subordinated Indenture and Other Obligations which are defined as including obligations associated with derivative products, such as interest rate and currency exchange contracts, foreign exchange contracts, commodity contracts and similar arrangements. Thus, Senior Indebtedness is defined in the 1992 Subordinated Indenture in a broader manner than in the 1986 Subordinated Indenture. At September 30, 1997, the aggregate Senior Indebtedness of the Corporation, as defined in the 1992 Subordinated Indenture, was approximately $733 million. Ranking. No class of Subordinated Securities is subordinated to any other class of subordinated debt securities; Subordinated Securities issued under the 1992 Subordinated Indenture are, however, expressly subordinated to a broader group of Senior Indebtedness than is the case with respect to the Holders of Subordinated Securities issued under the 1986 Subordinated Indenture. See "1992 Subordinated Indenture" above. Thus, in a bankruptcy or insolvency of the Corporation, the holders of such Subordinated Securities may receive less, ratably, than holders of Subordinated Securities issued under the 1986 Subordinated Indenture. See "1992 Subordinated Indenture" above and "Subordination Provisions" below. Subordination Provisions. In the event (a) of any distribution of assets of the Corporation upon any dissolution, winding up, liquidation or reorganization of the Corporation, whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Corporation or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of the properties of the Corporation which complies with the requirements of Article Eight of the 1986 Subordinated Indenture or the 1992 Subordinated Indenture, as the case may be, or (b) that a default shall have occurred and be continuing with respect to the payment of principal of (or premium, if any) or interest on any Senior Indebtedness, as defined in the relevant Indenture (excluding, in the case of the 1992 Subordinated Indenture, the Other Obligations), or (c) that the principal of the Subordinated Securities of any series issued under such Indenture (or in the case of Original Issue Discount Securities, the portion of the principal amount thereof referred to in Section 502 of the 1986 Subordinated Indenture or the 1992 Subordinated Indenture, as the case may be) shall have been declared due and payable pursuant to Section 502 of the 1986 Subordinated Indenture or the 1992 Subordinated Indenture, as the case may be, and such declaration shall not have been rescinded and annulled as provided in said Section 502, then: (1) in a circumstance described in the foregoing clause (a) or (b), the holders of all Senior Indebtedness, as defined in the relevant Indenture (excluding, in the case of the 1992 Subordinated Indenture, the Other Obligations), and in the circumstance described in the foregoing clause (c), the holders of all Senior Indebtedness, as defined in the relevant Indenture (excluding, in the case of the 1992 Subordinated Indenture, the Other Obligations), outstanding at the time the principal of such Subordinated Securities issued under such Indenture (or in the case of Original Issue Discount Securities, such portion of the principal amount) shall have been so declared due and payable, shall first be entitled to receive payment of the full amount due thereon in respect of principal, premium (if any) and interest, or provision shall be made for such payment in money or money's worth, before the Holders of any of the Subordinated Securities issued under any Indenture are entitled to receive any payment on account of the principal of (or premium, if any) or interest on the indebtedness evidenced by the Subordinated Securities; 18 21 (2) if upon any payment or distribution contemplated in clause (1) after giving effect to the subordination provisions contemplated therein there shall remain any amounts of cash, property or securities of the Corporation available for payment or distribution in respect of Subordinated Securities, then the amount of such cash, property or securities shall be shared ratably among the Holders of all Subordinated Securities issued under the 1986 Subordinated Indenture and the 1992 Subordinated Indenture and any subordinated indebtedness ranking on a parity therewith; provided, however, that in the case of a circumstance described in the foregoing clause (a), if at such time any creditors in respect of Other Obligations (as defined in the 1992 Subordinated Indenture) have not then received payment in full of all amounts due or to become due on or in respect of such Other Obligations, then the ratable portion of cash, property or securities distributable to the Holders of Subordinated Securities issued under the 1992 Subordinated Indenture shall first be applied to pay or provide for the payment in full of all of the Other Obligations before any payment or distribution may be made in respect of Subordinated Securities issued under the 1992 Subordinated Indenture; (3) any payment by, or distribution of assets of, the Corporation of any kind or character, whether in cash, property or securities (other than certain subordinated securities of the Corporation issued in a reorganization or readjustment), to which the Holders of any of the Securities or the Trustee would be entitled except for the provisions of Article Fourteen of the 1986 Subordinated Indenture or the 1992 Subordinated Indenture, as the case may be, shall be paid or delivered by the Person making such payment or distribution directly to the holders of Senior Indebtedness (other than Other Obligations) or to the holders of Other Obligations, as the case may be (as provided in clauses (1) and (2) above), or on their behalf, ratably according to the aggregate amounts remaining unpaid on account of such Senior Indebtedness (other than Other Obligations) or Other Obligations, as the case may be, held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness (other than Other Obligations) or Other Obligations, as the case may be (as provided in clauses (1) and (2) above), remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to or in respect of the holders of the Subordinated Securities, as contemplated in clause (1) above, or the holders of Subordinated Securities issued under the 1992 Subordinated Indenture as contemplated by clause (2) above; (4) in the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Corporation of any kind or character described in the foregoing clause (a) is received by the Trustee under the 1986 Subordinated Indenture or the 1992 Subordinated Indenture, as the case may be, or the Holders of any of the Subordinated Securities issued under either of such Indentures, before all Senior Indebtedness, as defined in the relevant Indenture, is paid in full, such payment or distribution shall be paid over to the holders of such Senior Indebtedness or on their behalf, ratably as aforesaid, for application to the payment of all such Senior Indebtedness remaining unpaid until all such Senior Indebtedness, as defined in the relevant Indenture, shall have been paid in full, after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness. By reason of such subordination in favor of the Holders of Senior Indebtedness in the event of insolvency, creditors of the Corporation who are not Holders of Senior Indebtedness or of the Subordinated Securities may recover less, ratably, than Holders of Senior Indebtedness and may recover more, ratably, than the Holders of the Subordinated Securities. By reason of the obligation of the Holders of Subordinated Securities issued under the 1992 Subordinated Indenture to pay over any cash, property and securities to creditors in respect of Other Obligations, in the event of insolvency, holders of Existing Subordinated Indebtedness may recover less, ratably, than creditors in respect of Other Obligations and may recover more, ratably, than the Holders of Subordinated Securities issued under the 1992 Subordinated Indenture. 19 22 OUTSTANDING AMOUNT OF SUBORDINATED SECURITIES Subordinated Securities issued under the relevant Indenture are not subordinated to the Corporation's issues of Putable Capital Notes, 9.70% Subordinated Notes due 2009, 9 1/2% Subordinated Notes due 2014, 9 1/2% Subordinated Notes due 2000, 9 3/4% Subordinated Notes due 2000, 8 7/8% Subordinated Notes due 2001, 9 1/8% Subordinated Notes due 2021, 9.30% Subordinated Notes due 2021, 8.25% Subordinated Notes due 2001, 7 7/8% Subordinated Notes due 2001, 7 3/4% Subordinated Notes due 2002, 7 1/4% Subordinated Notes due 2002, Floating Rate Subordinated Notes due 2002, Floating Rate Subordinated Notes due October 28, 2002, 5 7/8% Subordinated Notes due 2008, 7 3/4% Subordinated Notes due 2009, 7% Subordinated Notes due 2011 and 7.20% Subordinated Debentures due 2097, outstanding in the aggregate principal amount of $2.650 billion as of the date hereof. See "Subordination of Subordinated Securities -- Ranking" above. CONVERTIBLE DEBT SECURITIES The following provisions will apply to Debt Securities that will be convertible into Common Stock or Preferred Stock (the "Convertible Debt Securities") unless otherwise provided in the Prospectus Supplement for such Debt Securities. Conversion. The holder of any Convertible Debt Securities will have the right, exercisable at any time during the time period specified in the applicable Prospectus Supplement, unless previously redeemed by the Corporation, to convert such Convertible Debt Securities into shares of Common Stock or Preferred Stock at the conversion rate for each $1,000 principal amount of Convertible Debt Securities set forth in the Prospectus Supplement. The holder of a Convertible Debt Security may convert a portion thereof which is $1,000 or any integral multiple of $1,000. In the case of Convertible Debt Securities called for redemption, conversion rights will expire at the close of business on the date fixed for the redemption specified in the Prospectus Supplement, except that, in the case of redemption at the option of such holder, if applicable, such right will terminate upon receipt of written notice of the exercise of such option. In certain events, the conversion price or rate will be subject to adjustment as contemplated in the applicable Indenture. For Debt Securities convertible into Common Stock, such events include the issuance of shares of Common Stock of the Corporation as a dividend; subdivisions and combinations of Common Stock; the issuance to all holders of Common Stock of rights or warrants entitling such holders (for a period not exceeding 45 days) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share of Common Stock; and the distribution to all holders of Common Stock of shares of capital stock of the Corporation (other than Common Stock), evidences of indebtedness of the Corporation or of assets (excluding cash dividends paid from retained earnings and dividends payable in Common Stock for which adjustment is made as referred to above) or subscription rights or warrants (other than those referred to above). In any of such cases, no adjustment of the conversion price or rate will be required unless an adjustment would require a cumulative increase or decrease of at least 1% in such price or rate. Fractional shares of Common Stock will not be issued upon conversion, but, in lieu thereof, the Corporation will pay a cash adjustment. Convertible Debt Securities convertible into Common Stock surrendered for conversion between the record date for an interest payment, if any, and the interest payment date (except such Convertible Debt Securities called for redemption on a redemption date during such period) must be accompanied by payment of an amount equal to the interest thereon which the registered holder is entitled to receive. The adjustment provisions for Debt Securities convertible into shares of Preferred Stock will be determined at the time of an issuance of such Debt Securities and will be set forth in the applicable Prospectus Supplement related thereto. Except as set forth in the applicable Prospectus Supplement, any Convertible Debt Securities called for redemption, unless surrendered for conversion on or before the close of business on the redemption date, are subject to being purchased from the holder of such Convertible Debt Securities by one or 20 23 more investment bankers or other purchasers who may agree with the Corporation to purchase such Convertible Debt Securities and convert them into Common Stock or Preferred Stock, as the case may be. RISK FACTORS RELATING TO DEBT SECURITIES DENOMINATED IN FOREIGN CURRENCIES Debt securities denominated or payable in foreign currencies may entail significant risks. These risks include, without limitation, the possibility of significant fluctuations in the foreign currency markets, the imposition of foreign exchange controls, and potential illiquidity in the secondary market. See "Currency Risks." CONCERNING CITIBANK The Corporation and the Bank maintain deposit accounts and conduct banking transactions with Citibank and Citicorp, the parent of Citibank, in the ordinary course of their businesses. DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES The following description of the terms of Junior Subordinated Debt Securities summarizes certain general terms of the Junior Subordinated Debt Securities to which any Prospectus Supplement may relate. The particular terms of each issue of Junior Subordinated Debt Securities, as well as any modifications or additions to such general terms that may apply in the case of such Junior Subordinated Debt Securities, will be described in the Prospectus Supplement relating thereto. Accordingly, for a description of the terms of a particular issue of Junior Subordinated Debt Securities, reference must be made both to the Prospectus Supplement relating thereto and the following description. The Junior Subordinated Debt Securities are to be issued under a Junior Subordinated Indenture dated as of December 15, 1997, as supplemented from time to time (as so supplemented, the "Junior Subordinated Indenture"), between the Corporation and Bankers Trust Company, as trustee (the "Debenture Trustee"). The Junior Subordinated Indenture is qualified under the Trust Indenture Act. This summary of certain terms and provisions of the Junior Subordinated Indenture does not purport to be complete and is qualified in its entirety by reference to the Junior Subordinated Indenture and the Trust Indenture Act. Whenever particular provisions or defined terms in the Junior Subordinated Indenture are referred to herein, such provisions or defined terms are incorporated by reference herein. The form of Junior Subordinated Indenture is filed as an exhibit to the Registration Statement of which this Prospectus is a part. The Junior Subordinated Indenture is available for inspection at the office of Bankers Trust Company, Four Albany Street, New York, New York 10006. GENERAL TERMS OF JUNIOR SUBORDINATED DEBT SECURITIES The Junior Subordinated Debt Securities will be unsecured, junior subordinated obligations of the Corporation. The Junior Subordinated Indenture does not limit the amount of additional indebtedness the Corporation or any of its subsidiaries may incur. Since the Corporation is a holding company, the Corporation's rights and the rights of its creditors, including the holders of the Junior Subordinated Debt Securities, to participate in the assets of any subsidiary upon the latter's liquidation or recapitalization will be subject to the prior claims of the subsidiary's creditors, except to the extent that the Corporation may itself be a creditor with recognized claims against the subsidiary. The Junior Subordinated Debt Securities will rank pari passu with all other junior subordinated debt securities issued under the Junior Subordinated Indenture ("Other Debt") and will be unsecured and subordinate and junior in right of payment to the extent and in the manner set forth in the Junior Subordinated Indenture to all Senior Debt of the Corporation. See "-- Subordination." The Junior Subordinated Indenture does not limit the aggregate principal amount of indebtedness which may be issued thereunder and provides that Junior Subordinated Debt Securities may be issued thereunder from time to time in one or more series. 21 24 It is anticipated that each Junior Subordinated Debt Security will be in the name of the Property Trustee of the related Trust and held in trust for the benefit of the holders of the Trust Securities thereby. Upon the liquidation of a Trust upon the occurrence of certain events of default and otherwise as described herein and in an applicable Prospectus Supplement, Junior Subordinated Debt Securities subsequently may be distributed pro rata to the holders of the Trust Securities. Only one series of Junior Subordinated Debt Securities will be issued to a Trust in connection with the issuance of Trust Securities by such Trust. Reference is made to the Prospectus Supplement relating to the Trust Preferred Securities to be offered for the following terms of the related Junior Subordinated Debt Securities: (1) the title of the Junior Subordinated Debt Securities; (2) the aggregate principal amount of the Junior Subordinated Debt Securities; (3) the initial public offering price; (4) the date or dates on which the principal (and premium, if any) of the Junior Subordinated Debt Securities will be payable; (5) the rate or rates (which may be fixed or variable), or the method by which such rate or rates shall be determined, at which the Junior Subordinated Debt Securities will bear interest, if any; (6) the date or dates from which any such interest will accrue, the date or dates on which any such interest will be payable and the Regular Record Dates for such Interest Payment Dates; (7) the right, if any, to extend interest payment periods and the duration of such extension; (8) the place or places where the principal of (and premium, if any) and interest, if any, on the Junior Subordinated Debt Securities will be payable; (9) the period or periods within which, the price or prices at which and the terms and conditions upon which the Junior Subordinated Debt Securities may be redeemed, as a whole or in part, at the option of the Corporation, if the Corporation is to have such an option; (10) the obligation, if any, of the Corporation to redeem or purchase the Junior Subordinated Debt Securities pursuant to any sinking fund or analogous provision or at the option of a holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which the Junior Subordinated Debt Securities will be redeemed or purchased, as a whole or in part, pursuant to such obligation; (11) the portion of the principal amount of Junior Subordinated Debt Securities that shall be payable upon acceleration of the maturity of such Junior Subordinated Debt Securities, if other than the principal amount thereof; (12) the currency or currencies in which the Junior Subordinated Debt Securities are denominated, which may be in U.S. dollars, a foreign currency or units of two or more foreign currencies or a composite currency or currencies; (13) whether the amount of payments or principal of (and premium, if any) or interest, if any, on the Junior Subordinated Debt Securities may be determined with reference to an index, formula or other method (which index, formula or method may, but need not be, based on a currency, currencies, currency unit or units or composite currency or currencies) and the manner in which such amounts shall be determined; (14) any additions or deletions in the terms of the Junior Subordinated Debt Securities with respect to the Events of Default set forth in the Junior Subordinated Indenture; (15) the terms, if any, upon which the Junior Subordinated Debt Securities may be convertible and the terms and conditions upon which such conversion will be effected, including the initial conversion price or rate, the conversion period and any other provision in addition to or in lieu of those described herein; (16) whether the Junior Subordinated Debt Securities will be issued in certificated or book-entry form; (17) any applicable federal income tax consequences; and (18) any other terms of the Junior Subordinated Debt Securities not inconsistent with the provisions of the Junior Subordinated Indenture and applicable laws. FORM OF JUNIOR SUBORDINATED DEBT SECURITIES Unless otherwise indicated in the applicable Prospectus Supplement, 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 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. If the Junior Subordinated Debt Securities are distributed to the holders of the Trust Securities upon the termination of a Trust, the 22 25 form, denomination, book-entry and transfer procedures with respect to the Trust Preferred Securities as described under "Description of Trust Preferred Securities -- Form of Trust Preferred Securities" and "Book-Entry Procedures" shall apply to the Junior Subordinated Debt Securities mutatis mutandis. 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 "Book-Entry Procedures." OPTION TO EXTEND INTEREST PAYMENT DATE If set forth in the applicable Prospectus Supplement, so long as no Debenture Event of Default has occurred and is continuing, the Corporation will have the right 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 interest periods (each an "Extension Period"). 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 to the extent permitted by applicable law). During an Extension Period, interest will continue to accrue. 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 Debt) 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 Guarantees, (d) purchases or acquisitions of shares of the Corporation's Common Stock in connection with the satisfaction by the Corporation of its obligations under any employee benefit plan or any other contractual obligation of the Corporation (other than a contractual obligation ranking pari passu in all respects with or junior to the Junior Subordinated Debt Securities), (e) as a result of a reclassification of the Corporation's capital stock or the exchange or conversion of one class or series of the Corporation's capital stock for another class or series of the Corporation's capital stock or (f) the purchase of fractional interests in shares of the Corporation's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged). Prior to the termination of any Extension Period, the Corporation may further extend such Extension Period; provided, however, that such extension does not cause such Extension Period to exceed 10 consecutive semi-annual periods 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, 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 Trust Preferred 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 Trust Preferred Securities. There is no limitation on the number of times that the Corporation may elect to begin an Extension Period. 23 26 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 either Trust or both and distribute the Junior Subordinated Debt Securities of such Trust(s) 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 Trust Preferred 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 Issue Date, 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 Tax Event prepayment 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 will cease to accrue on the Junior Subordinated Debt Securities. RESTRICTIONS ON CERTAIN PAYMENTS The Corporation will also covenant 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) or (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 Debt) that rank pari passu in all respects with or junior in interest to the Junior Subordinated Debt Securities or make any guarantee payments with respect to any guarantee by the Corporation of the debt securities of any subsidiary of the Corporation (including under other guarantees) if such guarantee ranks pari passu in all respects with or junior in interest to the Junior Subordinated Debt Securities (other than (a) dividends or distributions in common stock of the Corporation, (b) any declaration of a dividend in connection with the implementation of a stockholders' rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (c) payments under the Guarantees, (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 24 27 under the Guarantee or (iii) the Corporation shall have given notice of its election of an Extension Period as provided in the Junior Subordinated 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 Junior Subordinated 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 Trust Preferred Securities so long as they remain outstanding) and qualifying, or maintaining the qualification of, the Junior Subordinated Indenture under the Trust Indenture Act. The Junior Subordinated 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 Junior Subordinated 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 Junior Subordinated Indenture. In addition, the Corporation and the Debenture Trustee may execute, without the consent of any holder of Junior Subordinated Debt Securities, any supplemental Junior Subordinated Indenture for the purpose of creating any Other Debt. EVENTS OF DEFAULT, WAIVER The Junior Subordinated 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 Junior Subordinated 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 related Trust, except in connection with the distribution of the Junior Subordinated Debt Securities to the holder of Trust Securities in liquidation of such Trust, the redemption of all of the Trust Securities of such Trust, or certain mergers, consolidations or amalgamations, each as permitted by the relevant Declaration. 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 Junior Subordinated Indenture, to be forthwith due and payable and to enforce its other rights as a creditor with respect to the Junior Subordinated Debt Securities. 25 28 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 Trust Preferred 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 Trust Preferred Securities shall have such right. The holders of a majority in aggregate outstanding principal amount of the Junior Subordinated Debt Securities affected thereby may, on behalf of the holders of all the Junior Subordinated Debt Securities, waive any past default, except a default in the payment of principal or interest (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the Debenture Trustee) or a default in respect of a covenant or provision which under the Junior Subordinated 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 Trust Preferred Securities shall have such right unless a higher percentage would have been required by holders of Junior Subordinated Debt Securities, in which case such higher percentage applies. 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 Junior Subordinated Indenture. ENFORCEABILITY OF RIGHTS BY HOLDERS OF TRUST PREFERRED 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 Trust Preferred Securities may institute a Direct Action. The Corporation may not amend the Junior Subordinated Indenture to remove the foregoing right to bring a Direct Action without the prior written consent of the holders of all of the Trust Preferred Securities. Notwithstanding any payments made to a holder of Trust Preferred 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 Trust Preferred Securities with respect to payments on the Trust Preferred Securities to the extent of any payments made by the Corporation to such holder in any Direct Action. The holders of the Trust Preferred 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 relevant Declaration. See "Description of Trust Preferred Securities -- Events of Default; Notice." MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITION The Junior Subordinated 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 26 29 Corporation or convey, transfer or lease its properties and assets substantially as an entirety to the Corporation, unless (i) in case the Corporation consolidates with or merges with or into another Person or conveys or transfers its properties and assets substantially as an entirety to any Person, the successor Person is organized under the laws of the United States or any state or the District of Columbia, and such successor Person expressly assumes the Corporation's obligations on the Junior Subordinated Debt Securities issued under the Junior Subordinated Indenture; (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 related Declaration and the related Guarantee and does not give rise to any breach or violation of the related Declaration or the related Guarantee; and (iv) certain other conditions as prescribed in the Junior Subordinated Indenture are met. The general provisions of the Junior Subordinated 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 Junior Subordinated 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 Junior Subordinated 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 (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, 27 30 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 Junior Subordinated 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 Debt; 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 Junior Subordinated 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 Junior Subordinated Indenture. The Junior Subordinated 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. INFORMATION CONCERNING THE DEBENTURE TRUSTEE The Debenture 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 Debenture Trustee is under no obligation to exercise any of the powers vested in it by the Junior Subordinated Indenture at the request of any holder of Junior Subordinated Debt Securities, unless offered reasonable indemnity 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. Unless otherwise indicated in the applicable Prospectus Supplement, the Debenture Trustee will be Bankers Trust Company. The Corporation and the Bank maintain deposit accounts and conduct banking transactions with Bankers Trust Company in the ordinary course of their business. DESCRIPTION OF DEBT WARRANTS The following description of the terms of the Debt Warrants sets forth certain general terms and provisions of the Debt Warrants to which any Prospectus Supplement may relate. The particular terms of the Debt Warrants offered by any Prospectus Supplement and the extent, if any, to which such general provisions do not apply to the Debt Warrants so offered will be described in the Prospectus Supplement relating to such Debt Warrants. The Debt Warrants are to be issued under one or more Debt Warrant Agreements to be entered into between the Corporation and a bank or trust company, as Debt Warrant Agent, all as set forth in the Prospectus Supplement relating to the particular issue of Debt Warrants. Debt Warrants may be issued independently or together with other securities offered by any Prospectus Supplement and may 28 31 be attached to or separate from such other securities. Copies of the form of Debt Warrant Agreement, including the form of Debt Warrant Certificate representing the Debt Warrant, are filed as exhibits to the Registration Statement of which this Prospectus is a part. The following summaries of certain provisions of the form of Debt Warrant Agreement and Debt Warrant Certificate do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Debt Warrant Agreement and the Debt Warrant Certificates, respectively, including the definitions therein of certain terms. GENERAL If Debt Warrants are offered, the applicable Prospectus Supplement will describe the terms of the Debt Warrants to be offered, including, where applicable, the following: (1) the offering price; (2) the currency in which Debt Warrants may be purchased; (3) the designation, aggregate principal amount, currency and terms of the Debt Securities purchasable upon exercise of such Debt Warrants; (4) the designation and terms of the Debt Securities with which such Debt Warrants are issued and the number of Debt Warrants issued with each such Debt Security; (5) the date on and after which such Debt Warrants and the related Debt Securities will be separately transferable; (6) the principal amount of Debt Securities purchasable upon exercise of such Debt Warrants and the price at and currency in which such principal amount of Debt Securities may be purchased upon such exercise; (7) the date on which the right to exercise Debt Warrants shall commence and the date on which such right shall expire (the "Expiration Date"); (8) whether the Debt Warrants represented by the Debt Warrant Certificates will be issued in registered or bearer form; (9) information with respect to book-entry procedures, if any; and (10) any other terms of the Debt Warrants (which shall not be inconsistent with the provisions of the Debt Warrant Agreements). Debt Warrant Certificates may be exchanged for new Debt Warrant Certificates of different denominations, may (if in registered form) be presented for registration of transfer, and may be exercised at the corporate trust office of the Debt Warrant Agent or any other office indicated in the applicable Prospectus Supplement. Prior to the exercise of their Debt Warrants, holders of Debt Warrants will not have any of the rights of Holders of the Debt Securities purchasable upon such exercise, including the right to receive payments of principal of, premium, if any, or interest, if any, on the Debt Securities purchasable upon such exercise or to enforce covenants in the Indenture. Prospective purchasers of Debt Warrants should be aware that special U.S. federal income tax, accounting and other considerations may be applicable to instruments such as Debt Warrants. The Prospectus Supplement relating to any issue of Debt Warrants will describe such considerations. EXERCISE OF DEBT WARRANTS Each Debt Warrant will entitle the holder thereof to purchase such principal amount of Debt Securities at such exercise price as shall in each case be set forth in, or calculable from, the Prospectus Supplement relating to such Debt Warrants. Debt Warrants may be exercised at any time prior to 5:00 p.m. New York time on the Expiration Date set forth in the Prospectus Supplement relating thereto. After the close of business on the Expiration Date (or such later date to which such Expiration Date may be extended by the Corporation), unexercised Debt Warrants will become void. Debt Warrants may be exercised by delivery to the Debt Warrant Agent of payment as provided in the applicable Prospectus Supplement of the amount required to purchase the Debt Securities purchasable upon such exercise together with certain information set forth on the reverse side of the Debt Warrant Certificate. Debt Warrants will be deemed to have been exercised upon receipt of the exercise price, subject to the receipt, within three business days, of the Debt Warrant Certificate evidencing such Debt Warrants. Upon receipt of such payment and the Debt Warrant Certificate properly completed and duly executed at the corporate trust office of the Debt Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Corporation will, as soon as practicable, issue and deliver pursuant to the Indenture the Debt Securities purchasable upon such 29 32 exercise. If fewer than all of the Debt Warrants represented by such Debt Warrant Certificate are exercised, a new Debt Warrant Certificate will be issued for the remaining amount of Debt Warrants. MODIFICATIONS The Debt Warrant Agreement and the terms of the Debt Warrants may be amended by the Corporation and the Debt Warrant Agent, without the consent of the holder thereof, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained therein, or in any other manner which the Corporation and the Debt Warrant Agent may deem necessary or desirable and which will not adversely affect the interests of the holders. ENFORCEABILITY OF RIGHTS BY HOLDERS The Debt Warrant Agent will act solely as an agent of the Corporation in connection with the issuance and exercise of Debt Warrants. The Debt Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its obligations under the Debt Warrant Agreement or Debt Warrant Certificate. Each holder may, without the consent of the Debt Warrant Agent, enforce by appropriate legal action, on his own behalf, his right to exercise his Debt Warrants. DESCRIPTION OF CURRENCY WARRANTS The following description of the terms of the Currency Warrants sets forth certain general terms and provisions of the Currency Warrants to which any Prospectus Supplement may relate. The particular terms of the Currency Warrants offered by any Prospectus Supplement and the extent, if any, to which such general provisions do not apply to the Currency Warrants so offered will be described in the Prospectus Supplement relating to such Currency Warrants. The Currency Warrants are to be issued under one or more Currency Warrant Agreements to be entered into between the Corporation and a bank or trust company, as Currency Warrant Agent, all as set forth in the Prospectus Supplement relating to the particular issue of Currency Warrants. Currency Warrants may be issued independently or together with other Securities offered by any Prospectus Supplement and may be attached to or separate from such other Securities. Copies of the form of Currency Warrant Agreement, including the form of Currency Warrant Certificates representing the Currency Warrants, are filed as exhibits to the Registration Statement of which this Prospectus is a part. The following summaries of certain provisions of the form of Currency Warrant Agreement and Currency Warrant Certificate do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Currency Warrant Agreement and the Currency Warrant Certificates, respectively, including the definitions therein of certain terms. GENERAL The Corporation may issue Currency Warrants either in the form of Currency Put Warrants entitling the holders thereof to receive from the Corporation the Currency Warrant Cash Settlement Value (as defined below) in U.S. dollars of the right to sell a specified amount of a specified foreign currency or composite currency (the "Designated Currency") for a specified amount of U.S. dollars, or Currency Call Warrants entitling the holder thereof to receive from the Corporation the Currency Warrant Cash Settlement Value in U.S. dollars of the right to purchase a specified amount of Designated Currency for a specified amount of U.S. dollars. Unless otherwise indicated in the Prospectus Supplement, a Currency Warrant will be settled only in cash, in U.S. dollars and, accordingly, will not require or entitle an Owner thereof to sell, deliver, purchase or take delivery of any currency or currency unit, including any foreign or composite currency. Unless otherwise provided in the applicable Prospectus Supplement, the Currency Warrant Cash Settlement Value of an exercised Currency Warrant will be an amount stated in U.S. dollars which, in the case of a Currency Put Warrant, is the greater of (i) zero and (ii) the amount computed by 30 33 subtracting from a nominal amount of U.S. dollars specified in the Prospectus Supplement (the "U.S. Dollar Constant") an amount equal to the U.S. Dollar Constant times a fraction, the numerator of which is the strike price set forth in the applicable Prospectus Supplement and the denominator of which is the spot exchange rate on the exercise date and, in the case of a Currency Call Warrant, will be the greater of (i) zero and (ii) the amount computed by subtracting the U.S. Dollar Constant from an amount equal to the U.S. Dollar Constant times a fraction, the numerator of which is the strike price set forth in the applicable Prospectus Supplement and the denominator of which is the spot exchange rate on the exercise date. If the Currency Warrants are to be offered either in the form of Currency Put Warrants or Currency Call Warrants, an Owner will receive a cash payment upon exercise only if the Currency Warrants have a Currency Warrant Cash Settlement Value in excess of zero at that time. If Currency Warrants are offered, the applicable Prospectus Supplement will describe the terms of the Currency Warrants offered thereby, including, where applicable, the following: (1) whether such Currency Warrants will be Currency Put Warrants, Currency Call Warrants, or both; (2) the aggregate amount of such Currency Warrants; (3) the offering price; (4) the Designated Currency, which may be a foreign currency or a composite currency (including ECUs), and information regarding such currency or composite currency; (5) the date on which the right to exercise such Currency Warrants shall commence and the date such right shall expire (the "Currency Warrant Expiration Date"); (6) the procedures and conditions relating to exercise; (7) the circumstances, if any, which will cause the Currency Warrants to be deemed to be automatically exercised; (8) the minimum number of Currency Warrants to be exercised at any one time other than upon automatic exercise and any other restrictions on exercise; (9) the method of determining the Currency Warrant Cash Settlement Value, including the strike price or range of strike prices and the U.S. Dollar Constant; (10) the national securities exchange on which the Currency Warrants will be listed; (11) whether the Currency Warrants will be issued in certificated or book-entry form; (12) the place or places at which payment of the Currency Warrant Cash Settlement Value is to be made by the Corporation; (13) information with respect to book-entry procedures, if any; (14) the plan of distribution of such Currency Warrants; (15) the identity of the Currency Warrant Agent; and (16) any other terms of such Currency Warrants (which shall not be inconsistent with the provisions of the Currency Warrant Agreement). Prospective purchasers of Currency Warrants should be aware that special U.S. federal income tax, accounting and other considerations may be applicable to instruments such as Currency Warrants. The Prospectus Supplement relating to any issue of Currency Warrants will describe such considerations. EXERCISE OF CURRENCY WARRANTS Except as may otherwise be provided in the Prospectus Supplement relating thereto, each Currency Warrant will entitle the holder thereof to the Currency Warrant Cash Settlement Value of such Currency Warrant on the applicable Exercise Date, in each case as such terms will be defined in the applicable Prospectus Supplement. If not exercised prior to 5 p.m., New York City time, on the fifth New York Business Day preceding the Currency Warrant Expiration Date, "in-the-money" Currency Warrants (i.e., those for which the Currency Warrant Cash Settlement Value exceeds zero) will be deemed automatically exercised as of the Currency Warrant Expiration Date. Currency Warrants will also be deemed automatically exercised if they are delisted even if such Warrants are "out-of-the-money" at such time in which case no payment will be required to be made to or by the beneficial Owner thereof. Procedures for exercise of the Currency Warrants will be set out in the applicable Prospectus Supplement. LISTING Unless otherwise provided in the Prospectus Supplement, each issue of Currency Warrants will be listed on a national securities exchange, subject only to official notice of issuance, as a condition of sale of any such Currency Warrants. In this regard, it should be noted that if the Corporation issues Currency Warrants in a foreign currency that does not currently underlie a standardized option traded on a national securities exchange, before such Currency Warrants could be traded on a national 31 34 securities exchange, such exchange would have to receive approval of the Commission. There can be no assurance that such approval will be granted. In the event that the Currency Warrants are delisted from, or permanently suspended from trading on such exchange, and, at or prior to such delisting or suspension, the Currency Warrants shall not have been listed on another national securities exchange, Currency Warrants not previously exercised will be deemed automatically exercised on the date such delisting or permanent suspension becomes effective. The Corporation will notify holders of Currency Warrants as soon as practicable of such delisting or permanent trading suspension. The applicable Currency Warrant Agreement will contain a covenant of the Corporation not to seek delisting of the Currency Warrants, or suspension of their trading, on such exchange unless the Currency Warrants have been, at the time, approved for listing on another national securities exchange. MODIFICATIONS The Currency Warrant Agreement and the terms of the Currency Warrants may be amended by the Corporation and the Currency Warrant Agent, without the consent of the holders or the registered holder thereof, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained therein, or in any other manner which the Corporation may deem necessary or desirable and which will not materially and adversely affect the interests of the holders. The Corporation and the Currency Warrant Agent also may modify or amend the Currency Warrant Agreement and the terms of the Currency Warrants, with the consent of the holders of not less than a majority in number of the then outstanding unexercised Currency Warrants affected, provided that no such modification or amendment that increases the Strike Price in the case of a Currency Call Warrant, decreases the Strike Price in the case of a Currency Put Warrant, shortens the period of time during which the Currency Warrants may be exercised or otherwise materially and adversely affects the exercise rights of the holders of the Currency Warrants or reduces the number of outstanding Currency Warrants the consent of whose holders is required for modification or amendment of the Currency Warrant Agreement or the terms of the Currency Warrants may be made without the consent of the holders affected thereby. MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS If at any time there shall be a merger, consolidation, sale, transfer, conveyance or other disposition of substantially all of the assets of the Corporation, then the successor or assuming corporation shall succeed to and be substituted for the Corporation in, and the Corporation will be relieved of any further obligation under, the Currency Warrant Agreement or the Currency Warrants. ENFORCEABILITY OF RIGHTS BY HOLDERS The Currency Warrant Agent will act solely as an agent of the Corporation in connection with the issuance and exercise of Currency Warrants. The Currency Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its obligations under the Currency Warrant Agreement or Currency Warrant Certificate. Each holders may, without the consent of the Currency Warrant Agent, enforce by appropriate legal action, on his own behalf, his right to exercise, and to receive payment for, his Currency Warrants. RISK FACTORS RELATING TO CURRENCY WARRANTS The Currency Warrants involve a high degree of risk, including foreign exchange risks, see "Currency Risks", and the risk of expiring worthless. Purchasers should be prepared to sustain a loss of some or all of the purchase price of their Currency Warrants. Prospective purchasers of Currency Warrants should be experienced with respect to foreign exchange transactions, options and option transactions and should reach an investment decision only after careful consideration with their advisors of the suitability of Currency Warrants in light of their particular financial circumstances, the 32 35 information set forth herein and the risk factors and information regarding the Currency Warrants and the Designated Currency set forth herein and in the Prospectus Supplement relating to such Currency Warrants. DESCRIPTION OF STOCK-INDEX WARRANTS The following description of the terms of the Stock-Index Warrants sets forth certain general terms and provisions of the Stock-Index Warrants to which any Prospectus Supplement may relate. The particular terms of the Stock-Index Warrants offered by any Prospectus Supplement and the extent, if any, to which such general provisions do not apply to the Stock-Index Warrants so offered will be described in the Prospectus Supplement relating to such Stock-Index Warrants. The Stock-Index Warrants are to be issued under one or more Stock-Index Warrant Agreements to be entered into between the Corporation and a bank or trust company, as Stock-Index Warrant Agent, all as will be set forth in the Prospectus Supplement relating to the particular issue of Stock-Index Warrants. Stock-Index Warrants may be issued independently or together with other Securities offered by any Prospectus Supplement and may be attached to or separate from such other Securities. Copies of the form of Stock-Index Warrant Agreement, including the form of Stock-Index Warrant Certificates representing the Stock-Index Warrants, are filed as exhibits to the Registration Statement of which this Prospectus is a part. The following summaries of certain provisions of the form of Stock-Index Warrant Agreement and Stock-Index Warrant Certificate do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Stock-Index Warrant Agreement and the Stock-Index Warrant Certificates, respectively, including the definitions therein of certain terms. GENERAL The Corporation may issue Stock-Index Warrants either in the form of Stock-Index Put Warrants, entitling the owners thereof to receive from the Corporation the Stock-Index Cash Settlement Value (as described in the applicable Prospectus Supplement) in U.S. dollars, which amount will be determined by reference to the amount, if any, by which the Stock-Index Exercise Price exceeds the closing value of the Index on the Valuation Date (the "Index Value") at the time of exercise, or in the form of Stock-Index Call Warrants, entitling the holders thereof to receive from the Corporation the Stock-Index Cash Settlement Value in U.S. dollars, which amount will be determined by reference to the amount, if any, by which the Index Value at the time of exercise exceeds the Stock-Index Exercise Price. The Prospectus Supplement for an issue of Stock-Index Warrants will set forth the formula pursuant to which the Stock-Index Cash Settlement Value will be determined. In addition, if so specified in the applicable Prospectus Supplement, following the occurrence of a Market Disruption Event (as defined therein), the Stock-Index Cash Settlement Value may be determined on a different basis than under normal exercise of a Stock-Index Warrant. Unless otherwise indicated in the Prospectus Supplement, a Stock-Index Warrant will be settled only in cash and will not require or entitle a holder thereof to sell, deliver, purchase or take delivery of any shares of any underlying stock or any other securities. The holders will not be entitled to any of the rights of the holders of any underlying stock. If Stock-Index Warrants are offered, the Prospectus Supplement will describe the terms of Stock-Index Warrants offered thereby, including the following: (1) whether such Stock-Index Warrants are Stock-Index Put Warrants, Stock-Index Call Warrants or both; (2) the aggregate amount of such Stock-Index Warrants; (3) the offering price; (4) the Stock Index for such Stock-Index Warrants, which may be based on one or more U.S. or foreign stocks or a combination thereof and may be a preexisting U.S. or foreign stock index compiled and published by a third party or an index based on one or more underlying stock or stocks selected by the Corporation solely in connection with the issuance of such Stock-Index Warrants, and certain information regarding such Stock Index and the underlying stock or 33 36 stocks; (5) the date on which the right to exercise such Stock-Index Warrants commences and the date on which such right expires (the "Stock-Index Warrant Expiration Date"); (6) the procedures and conditions relating to exercise; (7) the circumstances which will cause the Stock-Index Warrants to be deemed to be automatically exercised, if any; (8) the minimum number, if any, of Stock-Index Warrants to be exercised at any one time other than upon automatic exercise and any other restrictions on exercise; (9) the maximum number, if any, of such Stock-Index Warrants that may, subject to the Corporation's election, be exercised by all Owners (or by any person or entity) on any day; (10) the method of providing for a substitute index or otherwise determining the amount payable in connection with the exercise of such Stock-Index Warrants if the Stock Index changes or ceases to be made available by its publisher, which determination will be made by an independent expert; (11) the national securities exchange on which the Stock-Index Warrants will be listed, if any; (12) whether the Stock-Index Warrants will be issued in certificated or book-entry form; (13) the place or places at which payment of the Stock-Index Warrant Cash Settlement Value is to be made by the Corporation; (14) information with respect to book-entry procedures, if any; (15) the plan of distribution of such Stock-Index Warrants; (16) the identity of the Stock-Index Warrant Agent; (17) any provisions permitting an Owner of a Stock-Index Warrant to condition a Stock-Index Exercise Notice on the absence of certain specified changes in the Index Value after the Stock-Index Warrant Exercise Date; and (18) any other terms of such Stock-Index Warrants (which shall not be inconsistent with the provisions of the Stock-Index Warrant Agreement). Prospective purchasers of Stock-Index Warrants should be aware that special U.S. federal income tax, accounting and other considerations may be applicable to instruments such as Stock-Index Warrants. The Prospectus Supplement relating to any issue of Stock-Index Warrants will describe such considerations. EXERCISE OF STOCK-INDEX WARRANTS Except as may otherwise be provided in the Prospectus Supplement relating thereto, each Stock-Index Warrant will entitle the holder thereof to the Stock-Index Cash Settlement Value of such Stock-Index Warrant on the applicable Valuation Date, in each case as such terms will further be defined in the Prospectus Supplement relating thereto. Unless otherwise provided in the Prospectus Supplement, if not exercised prior to 5:00 p.m., New York City time, on the Stock-Index Warrant Expiration Date, Stock-Index Warrants will be deemed automatically exercised as of the Stock-Index Warrant Expiration Date even if they are then "out-of-the-money" at such time, in which case no payment will be required to be made to or by the holder thereof. Procedures for exercise of the Stock-Index Warrants will be set out in the applicable Prospectus Supplement. LISTING Unless otherwise provided in the Prospectus Supplement, each issue of Stock-Index Warrants will be listed on a national securities exchange, as specified in the Prospectus Supplement, subject only to official notice of issuance, as a condition to the sale of any such Stock-Index Warrants. In the event that the Stock-Index Warrants are delisted from, or permanently suspended from trading on, such exchange, and, at or prior to such delisting or suspension, the Stock-Index Warrants shall not have been listed on another national securities exchange, Stock-Index Warrants not previously exercised will be deemed automatically exercised on the date such delisting or permanent trading suspension becomes effective. The Stock-Index Cash Settlement Value to be paid in such event will be as set forth in the applicable Prospectus Supplement. The Corporation will notify holders of Stock-Index Warrants as soon as practicable of such delisting or permanent trading suspension. The applicable Stock-Index Warrant Agreement will contain a covenant of the Corporation not to seek delisting of the Stock-Index Warrants from, or permanent suspension of their trading on, such exchange, unless such Stock-Index Warrants have been, at the time, approved for listing on another national securities exchange. 34 37 MODIFICATIONS The Stock-Index Warrant Agreement and the terms of the Stock-Index Warrants may be amended by the Corporation and the Stock-Index Warrant Agent, without the consent of the holders or the registered holder, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained therein, or in any other manner which the Corporation may deem necessary or desirable and which will not materially and adversely affect the interests of the holders. The Corporation and the Stock-Index Warrant Agent also may modify or amend the Stock-Index Warrant Agreement and the terms of the Stock-Index Warrant, with the consent of the beneficial holders of not less than a majority in number of the then outstanding unexercised Stock-Index Warrants affected, provided that no such modification or amendment that increases the Exercise Price in the case of a Stock-Index Call Warrant, decreases the Exercise Price in the case of a Stock-Index Put Warrant, shortens the period of time during which the Stock-Index Warrants may be exercised or otherwise materially and adversely affects the exercise rights of the holders of the Stock-Index Warrants or reduces the number of outstanding Stock-Index Warrants the consent of whose holders is required for modification or amendment of the Stock-Index Warrant Agreement or the terms of the Stock-Index Warrants may be made without the consent of the holders affected thereby. MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS If at any time there shall be a merger, consolidation, sale, transfer, conveyance or other disposition of substantially all of the assets of the Corporation, then the successor or assuming corporation shall succeed to and be substituted for the Corporation in, and the Corporation will be relieved of any further obligation under, the Stock-Index Warrant Agreement or the Stock-Index Warrants. ENFORCEABILITY OF RIGHTS BY HOLDERS The Stock-Index Warrant Agent will act solely as an agent of the Corporation in connection with the issuance and exercise of Stock-Index Warrants. The Stock-Index Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its obligations under the Stock-Index Warrant Agreement or Stock-Index Warrant Certificate. Each holder may, without the consent of the Stock-Index Warrant Agent, enforce by appropriate legal action, on his own behalf, his right to exercise, and to receive payment for, his Stock-Index Warrants. RISK FACTORS RELATING TO THE STOCK-INDEX WARRANTS The Stock-Index Warrants may entail risks primarily related to fluctuations in the applicable Stock Index and possible illiquidity in the secondary market. These risks will vary depending on the particular terms of the Stock-Index Warrants and will be more fully described in the applicable Prospectus Supplement. DESCRIPTION OF OTHER WARRANTS The Other Warrants may be issued, if permitted under applicable law, to buy or sell debt securities of or guaranteed by the United States, to buy or sell a commodity or a unit of a commodity index or to buy or sell some other item or unit of an index other than indexes covered by Stock-Index Warrants (collectively, "Exercise Items"). Holders of Other Warrants will be entitled to receive from the Corporation the cash settlement value in U.S. dollars of the right to buy or sell the Exercise Items (the "Other Warrant Cash Settlement Value"). A holder of Other Warrants will receive a cash payment upon exercise only if the Other Warrants have an Other Warrant Cash Settlement Value in excess of zero at that time. The Other Warrants are to be issued under one or more Other Warrant Agreements to be entered into between the Corporation and a bank or trust company, as Other Warrant Agent, all as set forth in 35 38 the Prospectus Supplement relating to the particular issue of Other Warrants. Other Warrants may be issued independently or together with other Securities offered by any Prospectus Supplement and may be attached to or separate from such other Securities. Copies of the form of Other Warrant Agreement, including the forms of Warrant Certificates representing the Other Warrants, are filed as exhibits to the Registration Statement of which this Prospectus is a part. The following summaries of certain provisions of the form of Other Warrant Agreement and Other Warrant Certificate do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Other Warrant Agreement and the Other Warrant Certificates, respectively, including the definitions therein of certain terms. GENERAL Unless otherwise indicated in the Prospectus Supplement, an Other Warrant will be settled only in cash, in U.S. dollars, and accordingly, will not require or entitle an owner thereof to sell, deliver, purchase or take delivery of any Exercise Items. If Other Warrants are offered, the applicable Prospectus Supplement will describe the terms of such Other Warrants, including, where applicable, the following: (1) the title and aggregate number of such Other Warrants; (2) the offering price; (3) the material risk factors relating to such Other Warrants; (4) the Exercise Items that such Other Warrants represent the right to buy or sell; (5) the procedures and conditions relating to exercise; (6) the date on which the right to exercise the Other Warrants shall commence and the date such right shall expire (the "Other Warrant Expiration Date"); (7) the method of determining the Other Warrant Cash Settlement Value; (8) whether such Other Warrants will be issued in certificated or book-entry form; (9) whether such Other Warrants will be listed on a national securities exchange; (10) information with respect to book-entry procedures, if any; (11) the identity of the Other Warrant Agent; and (12) any other terms of such Other Warrants (which shall not be inconsistent with the provisions of the Other Warrant Agreement). Prospective purchasers of Other Warrants should be aware that special U.S. federal income tax, accounting and other considerations may be applicable to instruments such as Other Warrants. The Prospectus Supplement relating to any issue of Other Warrants will describe such considerations. EXERCISE OF OTHER WARRANTS Except as may otherwise be provided in the Prospectus Supplement relating thereto, each Other Warrant will entitle the holder thereof to the Other Warrant Cash Settlement Value of such Other Warrant on the applicable Valuation Date, in each case as such terms will further be defined in the Prospectus Supplement relating thereto. Unless otherwise provided in the Prospectus Supplement, if not exercised prior to 5:00 p.m., New York City time, on the Other Warrant Expiration Date, Other Warrants will be deemed automatically exercised as of the Other Warrant Expiration Date even if they are then "out-of-the-money" at such time, in which case no payment will be required to be made to or by the holder thereof. LISTING Unless otherwise provided in the relevant Prospectus Supplement, each issue of Other Warrants will be listed on a national securities exchange, subject only to official notice of issuance, as a condition of sale of any such Other Warrants. In this regard, it should be noted that if the Corporation issues Other Warrants on an Exercise Item that does not currently underlie a standardized option traded on a national securities exchange, before such Other Warrants could be traded on a national securities exchange, such exchange would have to receive approval of the Commission. There can be no assurance that such approval will be granted. In the event that the Other Warrants are delisted from, or permanently suspended from trading on, such exchange, and, at or prior to such delisting or suspension, the Other Warrants shall not have been listed on another national securities exchange, Other Warrants not previously exercised will be deemed automatically exercised on the date such 36 39 delisting or permanent suspension becomes effective. The Corporation will notify holders of Other Warrants as soon as practicable of such delisting or permanent trading suspension. The applicable Other Warrant Agreement will contain a covenant of the Corporation not to seek delisting of the Other Warrants, if listed, or suspension of their trading, on such exchange unless the Other Warrants have been, at the time, approved for listing on another national securities exchange. MODIFICATIONS The Other Warrant Agreement and the terms of the Other Warrants may be amended by the Corporation and the Other Warrant Agent, without the consent of the holders or the registered holder, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained therein, or in any other manner which the Corporation may deem necessary or desirable and which will not materially and adversely affect the interests of the holders. The Corporation and the Other Warrant Agent also may modify or amend the Other Warrant Agreement and the terms of the Other Warrants, with the consent of the beneficial holders of not less than a majority in number of the then outstanding unexercised Other Warrants affected, provided that no such modification or amendment that shortens the period of time during which the Other Warrants may be exercised or otherwise materially and adversely affects the exercise rights of the holders of the Other Warrants or reduces the number of outstanding Other Warrants the consent of whose holders is required for modification or amendment of the Other Warrant Agreement or the terms of the Other Warrants may be made without the consent of the holders affected thereby. MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS If at any time there shall be a merger, consolidation, sale, transfer, conveyance or other disposition of substantially all of the assets of the Corporation, then the successor or assuming corporation shall succeed to and be substituted for the Corporation in, and the Corporation will be relieved of any further obligation under, the Other Warrant Agreement or the Other Warrants. ENFORCEABILITY OF RIGHTS BY HOLDERS The Other Warrant Agent will act solely as an agent of the Corporation in connection with the issuance and exercise of Other Warrants. The Other Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its obligations under the Other Warrant Agreement or Other Warrant Certificate. Each holder may, without the consent of the Other Warrant Agent, enforce by appropriate legal action, on his own behalf, his right to exercise, and to receive payment for, their Other Warrants. RISK FACTORS The Other Warrants may entail significant risks, including, without limitation, the possibility of significant fluctuation in the market for the applicable Exercise Item, the potential illiquidity in the secondary market and the risk that they will expire worthless. These risks will vary depending on the particular terms of the Other Warrants and will be more fully described in the applicable Prospectus Supplement. 37 40 DESCRIPTION OF PREFERRED STOCK The following description of the terms of the shares of Preferred Stock that may be offered by the Corporation sets forth certain general terms and provisions of the Preferred Stock to which any Prospectus Supplement may relate. Certain other terms of any series of Preferred Stock and the terms of any related option, put or right of the Corporation to require the holder of any other Offered Security to also acquire shares of Preferred Stock, will be specified in the applicable Prospectus Supplement. If so specified in the applicable Prospectus Supplement, the terms of any series of Preferred Stock may differ from the terms set forth below. The description of the terms of the Preferred Stock set forth below and in any Prospectus Supplement does not purport to be complete and is subject to and qualified in its entirety by reference to the Articles Supplementary relating to the applicable series of Preferred Stock, which Articles will be filed as an exhibit to or incorporated by reference in the Registration Statement of which this Prospectus forms a part. GENERAL Pursuant to the Corporation's Articles of Incorporation and the Maryland General Corporation Law, the Board of Directors of the Corporation has the authority without further stockholder action, to issue from time to time up to a maximum of 19,999,000 shares of preferred stock without par value, in one or more series and for such consideration as may be fixed from time to time by the Board of Directors of the Corporation and to fix before the issuance of any shares of preferred stock of a particular series, the designation of such series, the number of shares to comprise such series, the dividend rate or rates payable with respect to the shares of such series, the redemption price or prices, if any, and the terms and conditions of any redemption, the voting rights, any sinking fund provisions for the redemption or purchase of the shares of such series, the terms and conditions upon which the shares are convertible or exchangeable, if they are convertible or exchangeable, and any other relative rights, preferences and limitations pertaining to such series. As of the date of this Prospectus, the Corporation has 12,497,250 shares available for issuance as Preferred Stock. Under interpretations adopted by the Federal Reserve Board, if the holders of Preferred Stock of any series become entitled to vote for the election of directors because dividends on such series are in arrears as described under "Voting Rights" below, such series may then be deemed a "class of voting securities" and a holder of 25% or more of such series (or a holder of 5% or more if it otherwise exercises a "controlling influence" over the Corporation) may then be subject to regulation as a bank holding company. In addition, at such time as such series is deemed a class of voting securities, any other bank holding company may be required to obtain the prior approval of the Federal Reserve Board to acquire 5% or more of such series, and any person other than a bank holding company may be required to obtain the prior approval of the Federal Reserve Board to acquire 10% or more of such series. The Preferred Stock offered hereby shall have the dividend, liquidation, redemption, voting and conversion or exchange rights set forth below unless otherwise specified in the applicable Prospectus Supplement. If Preferred Stock is offered, the applicable Prospectus Supplement will describe the terms of such Preferred Stock, including, where applicable, the following: (1) the designation, stated value and liquidation preference of such Preferred Stock and the number of shares offered; (2) the offering price; (3) the dividend rate or rates (or method of calculation), the dividend periods, the date on which dividends shall be payable and whether such dividends shall be cumulative or noncumulative and, if cumulative, the dates from which dividends shall commence to cumulate; (4) any redemption or sinking fund provisions; (5) any conversion or exchange provisions; (6) voting rights, if any; (7) the material risk factors relating to such Preferred Stock; (8) whether such Preferred Stock will be issued in certificated or book-entry form; (9) whether such Preferred Stock will be listed on a national securities exchange; (10) information with respect to book-entry procedures, if any; and (11) any additional dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges, limitations and restrictions of such Preferred Stock. 38 41 The Preferred Stock will, when issued against payment therefor, be fully paid and nonassessable. Unless otherwise specified in the applicable Prospectus Supplement, the shares of each series of Preferred Stock will upon issuance rank on a parity in all respects with the outstanding shares of preferred stock of the Corporation. Holders of Preferred Stock will have no preemptive rights to subscribe for any additional securities which may be issued by the Corporation. Unless otherwise specified in the applicable Prospectus Supplement, American Stock Transfer & Trust Company (or its successors) will be the transfer agent and registrar for the Preferred Stock. Because the Corporation is a holding company, its rights and the rights of holders of its securities, including the holders of Preferred Stock, to participate in the distribution of assets of any subsidiary of the Corporation upon the latter's liquidation or recapitalization will be subject to the prior claims of such subsidiary's creditors and preferred stockholders, except to the extent the Corporation may itself be a creditor with recognized claims against such subsidiary or a holder of preferred stock of such subsidiary. The shares of Preferred Stock will not be savings or deposit accounts or other obligations of a bank and will not be insured by the FDIC. DIVIDENDS The holders of the Preferred Stock will be entitled to receive, when and as declared by the Board of Directors of the Corporation, out of funds legally available therefor, dividends at such rates and on such dates as will be specified in the applicable Prospectus Supplement. Such rates may be fixed or variable or both. If variable, the formula used for determining the dividend rate for each dividend period will be specified in the applicable Prospectus Supplement. Dividends will be payable to the holders of record as they appear on the stock books of the Corporation on such record dates as will be fixed by the Board of Directors of the Corporation. Dividends may be paid in the form of cash, Preferred Stock (of the same or a different series) or Common Stock of the Corporation, in each case as specified in the applicable Prospectus Supplement. Dividends on any series of Preferred Stock may be cumulative or noncumulative, as specified in the applicable Prospectus Supplement. If the Board of Directors of the Corporation fails to declare a dividend payable on a dividend payment date on any Preferred Stock for which dividends are noncumulative ("Noncumulative Preferred Stock"), then the holders of such Preferred Stock will have no right to receive a dividend in respect of the dividend period relating to such dividend payment date, and the Corporation will have no obligation to pay the dividend accumulated for such period, whether or not dividends on such Preferred Stock are declared or paid on any future dividend payment dates. The Corporation shall not declare or pay or set apart for payment any dividends on any series of its preferred stock ranking, as to dividends, on a parity with or junior to the outstanding Preferred Stock of any series unless (i) if such series of Preferred Stock has a cumulative dividend ("Cumulative Preferred Stock"), full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on such Preferred Stock for all dividend periods terminating on or prior to the date of payment of any such dividends on such other series of preferred stock of the Corporation, or (ii) if such series of Preferred Stock is Noncumulative Preferred Stock, full dividends for the then current dividend period on such Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment. When dividends are not paid in full upon Preferred Stock of any series and any other shares of preferred stock of the Corporation ranking on a parity as to dividends with such Preferred Stock, all dividends declared upon such Preferred Stock and any other preferred stock of the Corporation ranking on a parity as to dividends with such Preferred Stock shall be declared pro rata so that the amount of dividends declared per share on such Preferred Stock and such other shares shall in all cases bear to each other the same ratio that the accrued dividends per share on such Preferred Stock (which shall not, if such Preferred Stock is Noncumulative Preferred 39 42 Stock, include any accumulation in respect of unpaid dividends for prior dividend periods) and such other preferred stock bear to each other. Except as set forth in the preceding sentence, unless full dividends on the outstanding Cumulative Preferred Stock of any series have been declared and paid or set apart for payment for all past dividend periods and full dividends for the then current dividend period on the outstanding Noncumulative Preferred Stock of any series have been declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment, no dividends (other than in Common Stock of the Corporation or other shares of the Corporation ranking junior to such Preferred Stock as to dividends and upon liquidation) shall be declared or paid or set aside for payment, nor shall any other distribution be made, on the Common Stock of the Corporation or on any other shares of the Corporation ranking junior to or on a parity with such Preferred Stock as to dividends or upon liquidation. Unless full dividends on the Cumulative Preferred Stock of any series have been declared and paid or set apart for payment for all past dividend periods and full dividends for the then current dividend period on the Noncumulative Preferred Stock of any series have been declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment, no Common Stock or any other shares of the Corporation ranking junior to or on a parity with such Preferred Stock as to dividends or upon liquidation shall be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid or made available for a sinking fund for the redemption of any such shares) by the Corporation or any subsidiary of the Corporation except by conversion into or exchange for shares of the Corporation ranking junior to such Preferred Stock as to dividends and upon liquidation. REDEMPTION Preferred Stock may be redeemable, in whole or in part, at the option of the Corporation, out of funds legally available therefor, and may be subject to mandatory redemption pursuant to a sinking fund or otherwise, in each case upon terms, at the times and at the redemption prices specified in the applicable Prospectus Supplement and subject to the rights of holders of other securities of the Corporation. Preferred Stock redeemed by the Corporation will be restored to the status of authorized but unissued shares of preferred stock. The Prospectus Supplement relating to a series of Preferred Stock that is subject to mandatory redemption will specify the number of shares of such Preferred Stock that shall be redeemed by the Corporation in each year commencing after a date to be specified, at a redemption price per share to be specified, together with an amount equal to all accumulated and unpaid dividends thereon (which shall not, if such Preferred Stock is Noncumulative Preferred Stock, include any accumulation in respect of unpaid dividends for prior dividend periods) to the date of redemption. The redemption price may be payable in cash or other property, as specified in the applicable Prospectus Supplement. If the redemption price for Preferred Stock of any series is payable only from the net proceeds of the issuance of capital stock of the Corporation, the terms of such Preferred Stock may provide that, if no such capital stock shall have been issued or to the extent the net proceeds from any issuance are insufficient to pay in full the aggregate redemption price then due, such Preferred Stock shall automatically and mandatorily be converted into shares of the applicable capital stock of the Corporation pursuant to conversion provisions specified in the applicable Prospectus Supplement. If fewer than all the outstanding shares of Preferred Stock of any series are to be redeemed, the number of shares to be redeemed will be determined by the Board of Directors of the Corporation and such shares may be redeemed pro rata from the holders of record of such shares in proportion to the number of such shares held by such holders (with adjustments to avoid redemption of fractional shares) or by lot in a manner determined by the Board of Directors of the Corporation. Notwithstanding the foregoing, if any dividends, including any accumulation, on Cumulative Preferred Stock of any series are in arrears, no Preferred Stock of such series shall be redeemed unless 40 43 all outstanding Preferred Stock of such series is simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire any Preferred Stock of such series; provided, however, that the foregoing shall not prevent the purchase or acquisition of Preferred Stock of such series pursuant to a purchase or exchange offer provided such offer is made on the same terms to all holders of the Preferred Stock of such series. Notice of redemption shall be given by mailing the same to each record holder of the Preferred Stock to be redeemed, not less than 30 nor more than 60 days prior to the date fixed for redemption thereof, at the address of such holder as the same shall appear on the stock books of the Corporation. Each notice shall state: (i) the redemption date; (ii) the number of shares and series of the Preferred Stock to be redeemed; (iii) the redemption price; (iv) the place or places where certificates for such Preferred Stock are to be surrendered for payment of the redemption price; (v) that dividends on the shares to be redeemed will cease to accumulate on such redemption date; and (vi) the date upon which the holder's conversion or exchange rights, if any, as to such shares, shall terminate. If fewer than all the shares of Preferred Stock of any series are to be redeemed, the notice mailed to each such holder thereof shall also specify the number of shares of Preferred Stock to be redeemed from each such holder. If notice of redemption of any shares of Preferred Stock has been given and if the funds necessary for such redemption have been set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata benefit of holders of any shares of Preferred Stock so called for redemption, from and after the redemption date for such shares, dividends on such shares shall cease to accumulate and such shares shall no longer be deemed to be outstanding, and all rights of the holders thereof as stockholders of the Corporation (except the right to receive the redemption price) shall cease. Upon surrender, in accordance with such notice, of the certificates representing any such shares (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), the redemption price set forth above shall be paid out of the funds provided by the Corporation. If fewer than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof. CONVERSION OR EXCHANGE RIGHTS The Prospectus Supplement relating to a series of Preferred Stock that is convertible or exchangeable will state the terms on which shares of such series are convertible or exchangeable into Common Stock, another series of Preferred Stock or Debt Securities. To the extent regulatory approval may be required for shares of Preferred Stock to be convertible or exchangeable for Debt Securities, the Corporation will seek to obtain such approval. RIGHTS UPON LIQUIDATION In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of Preferred Stock shall be entitled to receive out of the assets of the Corporation available for distribution to stockholders, before any distribution of assets is made to holders of Common Stock or any other class or series of shares ranking junior to such Preferred Stock upon liquidation, liquidating distributions in the amount of the liquidation preference of such Preferred Stock plus accumulated and unpaid dividends (which shall not, in the case of Noncumulative Preferred Stock, include any accumulation in respect of unpaid dividends for prior dividend periods). If, upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the amounts payable with respect to Preferred Stock of any series and any other shares of the Corporation ranking as to any such distribution on a parity with such Preferred Stock are not paid in full, the holders of such Preferred Stock and of such other shares will share ratably in any such distribution of assets of the Corporation in proportion to the full respective preferential amounts to which they are entitled. After payment of the full amount of the liquidating distribution to which they are entitled, the holders of Preferred Stock of any series will not be entitled to any further participation in any distribution of assets by the Corporation. 41 44 VOTING RIGHTS Except as indicated below or in the applicable Prospectus Supplement, or except as expressly required by applicable law, the holders of Preferred Stock will not be entitled to vote. Whenever dividends on any shares of Cumulative Preferred Stock shall be in arrears for six consecutive quarterly periods, the holders of such shares of Cumulative Preferred Stock (voting separately as a class with all other series of cumulative preferred stock upon which like voting rights have been conferred and are exercisable) will be entitled to vote for the election of two additional directors of the Corporation at the next annual meeting of stockholders and at each subsequent meeting until all dividends accumulated on such shares of Cumulative Preferred Stock shall have been fully paid or set aside for payment. In such case, the entire Board of Directors of the Corporation will be increased by two directors. So long as any shares of Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote of the holders of at least two-thirds of the votes of the shares of Preferred Stock outstanding at the time, given in person or by proxy, at a meeting (voting separately as one class): (i) authorize, create or issue, or increase the authorized or issued amount of, any class or series of stock ranking prior to the Preferred Stock with respect to payment of dividends or distribution of assets upon liquidation, dissolution or winding up, (ii) authorize, create or issue, or increase the authorized or issued amount of, any class or series of stock (including any class or series of Preferred Stock) which ranks on a parity with the Preferred Stock as to dividends and upon liquidation, dissolution or winding up ("Parity Stock") unless the Articles Supplementary or other provisions of the charter creating or authorizing such class or series provide that if in any case the stated dividends or amounts payable upon liquidation, dissolution or winding up are not paid in full on the Preferred Stock and all outstanding shares of Parity Stock, the shares of all Parity Stock shall share ratably in the payment of dividends, including accumulations (if any) in accordance with the sums which would be payable on all Parity Stock if all dividends in respect of all shares of Parity Stock were paid in full, and on any distribution of assets upon liquidation, dissolution or winding up ratably in accordance with the sums which would be payable in respect of all shares of Parity Stock if all sums payable were discharged in full, or (iii) amend, alter or repeal the provisions of the Articles of Incorporation, including the Articles Supplementary relating to the Preferred Stock, whether by merger, consolidation, or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of such shares of Preferred Stock or the holders thereof; provided, however, that any increase in the amount of the authorized preferred stock or any outstanding series of preferred stock or any other capital stock of the Corporation, or the creation and issuance of other series of preferred stock including the Preferred Stock offered hereby or of any other capital stock of the Corporation, in each case ranking on a parity with or junior to the Preferred Stock with respect to the payment of dividends and the distribution of assets upon liquidation, dissolution or winding up shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers. So long as any shares of Preferred Stock remain outstanding, the Corporation will not, without the affirmative vote of the holders of at least a majority of the votes of all shares of Parity Stock outstanding and entitled to vote at the time, (a) directly or indirectly sell, transfer or otherwise dispose of, or permit the Bank or any other subsidiary of the Corporation to issue, sell, transfer or otherwise dispose of, any shares of voting stock of the Bank, or securities convertible into or options, warrants or rights to acquire voting stock of the Bank, unless after giving effect to any such transaction the Bank remains a Controlled Subsidiary (as hereinafter defined) of the Corporation or of a Qualified Successor Company (as hereinafter defined); (b) merge or consolidate with, or convey substantially all of its assets to, any person or corporation unless the entity surviving such merger or consolidation or the transferee of such assets is the Corporation or a Qualified Successor Company; or (c) permit the Bank to merge, consolidate with, or convey substantially all of its assets to, any person or corporation unless the entity surviving such merger or consolidation or the transferee of such assets is a Controlled Subsidiary of the Corporation or of a Qualified Successor Company, except as required to comply with applicable law. The term "Qualified Successor Company" means a corporation (or other similar 42 45 organization or entity whether organized under or pursuant to the laws of the United States or any State thereof or of another jurisdiction) which (i) is or is required to be a registered bank holding company under the United States Bank Holding Company Act of 1956, as amended, or any successor legislation, (ii) issues to the holders of Preferred Stock, in exchange for the Preferred Stock, shares of preferred stock having at least the same relative rights and preferences as the shares of Preferred Stock (the "Exchanged Stock"), (iii) immediately after such transaction has no outstanding or authorized class of stock or equity securities ranking prior to the Exchanged Stock with respect to the payment of dividends or the distribution of assets upon liquidation, dissolution or winding up and (iv) holds, as a Controlled Subsidiary or Subsidiaries, either the Bank or one or more other banking corporations which, collectively, immediately after such transaction hold substantially all of the assets and liabilities which the Bank held immediately prior to such transaction (which may be in addition to the other assets and liabilities acquired in such transaction). "Controlled Subsidiary" means any corporation at least 80% of the outstanding shares of voting stock of which shall at the time be owned directly or indirectly by the Corporation or a Qualified Successor Company. In connection with the exercise of the voting rights described in this paragraph, the holders of all series of Parity Stock which are granted such voting rights will vote as a class. The foregoing voting provisions will not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding shares of Preferred Stock shall have been redeemed or sufficient funds shall have been deposited in trust to effect such redemption. OUTSTANDING PREFERRED STOCK As of the date of this Prospectus, there were outstanding 625 shares of Series A and 625 shares of Series B Dutch Auction Rate Transferable Securities Preferred Stock ("DARTS"), 6,000,000 Depositary Shares each representing a one-fourth interest in a share of Adjustable Rate Cumulative Preferred Stock, Series D (the "Depositary Shares"), 3,000,000 shares of $1.8125 Cumulative Preferred Stock (the "$1.8125 Preferred Stock") and 3,000,000 shares of $2.8575 Cumulative Preferred Stock (the $2.8575 Preferred Stock"). The DARTS, the Depositary Shares, the $1.8125 Preferred Stock and the $2.8575 Cumulative Preferred Stock are collectively referred to as the "Outstanding Preferred Stock". The statements made under this caption include summaries of certain provisions contained in the Corporation's Articles of Incorporation and By-Laws and of various Articles Supplementary pursuant to which the Outstanding Preferred Stock has been issued. These statements do not purport to be complete and are qualified in their entirety by reference to such Articles of Incorporation and By-Laws and such Articles Supplementary. General. The Outstanding Preferred Stock has preference over the Common Stock with respect to the payment of dividends and the distribution of assets in the event of liquidation, dissolution or winding up of the Corporation. Holders of the Outstanding Preferred Stock do not have any preemptive rights. Dividends. Dividends on the Outstanding Preferred Stock are cumulative. Dividends on the DARTS and Depositary Shares are at floating rates periodically determined on the basis of various formulae or auction procedures. Dividends on the $1.8125 Preferred Stock are payable quarterly at an annual rate of $1.8125 per share. Dividends on the $2.8575 Preferred Stock are payable quarterly at an annual rate of $2.8575 per share. Voting Rights. Whenever dividends on the Outstanding Preferred Stock are not paid in full (for six consecutive quarterly periods, in the case of the $2.8575 Preferred Stock, $1.8125 Preferred Stock, the Depositary Shares and the DARTS), the holders of any such Outstanding Preferred Stock shall be entitled to vote for the election of two directors until all past due dividends have been paid or provided for. The holders of the Depositary Shares and the $1.8125 Preferred Stock are entitled to one-half vote per share and the holders of the $2.8575 Preferred Stock are entitled to one vote on all matters on which they are entitled to vote (representing one vote per $50 of liquidation preference). The holders of the 43 46 DARTS are entitled to 2,000 votes per share on all matters on which they are entitled to vote (representing one vote per $50 of liquidation preference). Holders of the Outstanding Preferred Stock also have voting rights (a) in the case of the Corporation's authorization, creation or issuance, or any increase in authorized or issued amounts, of any class or series of stock ranking either prior to such Outstanding Preferred Stock or, in certain cases, on a parity therewith or (b) in connection with the amendment, authorization or repeal of provisions of the Corporation's Articles of Incorporation (including Articles Supplementary relating to such Outstanding Preferred Stock) that would materially and adversely affect any right, preference, privilege or voting power of such shares of Outstanding Preferred Stock or the holders thereof. The affirmative vote of holders of the Outstanding Preferred Stock may also be required in connection with (i) the sale, transfer or disposition of certain assets of the Corporation, (ii) the merger or consolidation or sale of substantially all of the assets of the Corporation or (iii) the merger, consolidation or sale of substantially all of the assets of the Bank, unless in the case of either (ii) or (iii) the Corporation or the Bank, as the case may be, is the surviving entity or the surviving entity is a bank or bank holding company meeting certain requirements. Liquidation Rights. In the event of liquidation, dissolution or winding up of the Corporation, the holders of the outstanding $1.8125 Preferred Stock and the holders of the outstanding Depositary Shares are entitled to receive a distribution of $25.00 per share, the holders of the outstanding $2.8575 Preferred Stock are entitled to receive a distribution of $50 per share and the holders of the outstanding DARTS are entitled to receive a distribution of $100,000 per share, plus, in each case, accumulated dividends, if any. Redemption. The Corporation has the option to redeem the Outstanding Preferred Stock, in each case, as a whole or in part, on specified dates and at specified redemption prices. DESCRIPTION OF DEPOSITARY SHARES The Corporation may issue receipts ("Depositary Receipts") for Depositary Shares, each of which will represent a fraction of a share of Preferred Stock. Shares of Preferred Stock of each class or series represented by Depositary Shares will be deposited under a separate Deposit Agreement (the "Deposit Agreement") among the Corporation, American Stock Transfer & Trust Company (or its successor, the "Preferred Stock Depositary") and the holders from time to time of the Depositary Receipts. Subject to the terms of the Deposit Agreement, each holder of a Depositary Receipt will be entitled, in proportion to the fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, conversion, redemption and liquidation rights). The Depositary Shares will be evidenced by Depositary Receipts issued pursuant to the applicable Deposit Agreement at the time such receipts are issued. Immediately following the issuance and delivery of the Preferred Stock by the Corporation to the Preferred Stock Depositary, the Corporation will cause the Preferred Stock Depositary to issue, on behalf of the Corporation, the Depositary Receipts to the Underwriters. Copies of the applicable form of Deposit Agreement and Depositary Receipt may be obtained from the Corporation upon request, and the following summary of the form thereof filed as an exhibit to the Registration Statement of which this Prospectus is a part is qualified in its entirety by reference thereto. GENERAL The Depositary Shares shall have the dividend, liquidation, redemption, voting and conversion or exchange rights set forth below unless otherwise specified in the applicable Prospectus Supplement. Reference is made to the Prospectus Supplement relating to the particular series of Depositary Shares offered thereby for specific terms, including (1) the designation stated value and liquidation preference of such Depositary Shares and the number of shares offered; (2) the offering price; (3) the dividend rate or rates (or method of calculation), the dividend periods, the date on which dividends shall be payable and whether such dividends shall be cumulative or noncumulative and, if cumulative, the 44 47 dates form which dividends shall commence to cumulate; (4) any redemption or sinking fund provisions; (5) any conversion or exchange provisions; (6) the material risk factors relating to such Depositary Shares; (7) whether such Depositary Shares will be issued in certificated or book-entry form; (8) whether such Depositary Shares will be listed on a national securities exchange; (9) information with respect to book-entry procedures, if any; and (10) any other terms of such Depositary Shares. As of the date of this Prospectus, the Corporation has outstanding 6,000,000 Depositary Shares each representing a one-fourth interest in a share of the Corporation's Adjustable Rate Cumulative Preferred Stock, Series D. DIVIDENDS AND OTHER DISTRIBUTIONS The Preferred Stock Depositary will distribute all dividends or other cash distributions received in respect of the Preferred Stock to the record holders of Depositary Receipts in proportion to the number of such Depositary Receipts owned by such holders, subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the Preferred Stock Depositary. In the event of a distribution other than in cash, the Preferred Stock Depositary will distribute property received by it to the record holders of Depositary Receipts entitled thereto, subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the Preferred Stock Depositary, unless the Preferred Stock Depositary determines that it is not feasible to make such distribution, in which case the Preferred Stock Depositary may, with the approval of the Corporation, sell such property and distribute the net proceeds from such sale to such holders. WITHDRAWAL OF STOCK Upon surrender of the Depositary Receipts at the corporate trust office of the Preferred Stock Depositary (unless the related Depositary Shares have previously been called for redemption), the holder of the Depositary Shares evidenced thereby will be entitled to delivery, at such office to or upon his order, of the number of whole shares of the Preferred Stock and any money or other property represented by such Depositary Shares. Holders of Depositary Receipts will be entitled to receive whole shares of the Preferred Stock on the basis of the proportion of Preferred Stock represented by each Depositary Share as specified in the relevant Prospectus Supplement, but holders of such whole shares of Preferred Stock will not thereafter be entitled to receive Depositary Shares therefor. If the Depositary Receipts delivered by the holder evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole shares of Preferred Stock to be withdrawn, the Preferred Stock Depositary will deliver to such holder at the same time a new Depositary Receipt evidencing such excess number of Depositary Shares. REDEMPTION OF DEPOSITARY SHARES Whenever the Corporation redeems shares of Preferred Stock held by the Preferred Stock Depositary, the Preferred Stock Depositary will redeem as of the same redemption date the number of Depositary Shares representing shares of the Preferred Stock so redeemed, provided the Corporation shall have paid in full to the Preferred Stock Depositary the redemption price of the Preferred Stock to be redeemed plus an amount equal to any accumulated and unpaid dividends thereon to the date fixed for redemption. The redemption price per Depositary Share will be equal to the redemption price and any other amounts per share payable with respect to the Preferred Stock. If less than all the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by the Preferred Stock Depositary by lot or pro rata or other equitable method, in each case as may be determined by the Corporation. After the date fixed for redemption, the Depositary Shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the Depositary Shares so called for 45 48 redemption will cease, except the right to receive any moneys payable upon such redemption and any money or other property to which the holders of such Depositary Shares were entitled upon such redemption upon surrender to the Preferred Stock Depositary of the Depositary Receipts evidencing such Depositary Shares. VOTING THE PREFERRED STOCK Upon receipt of notice of any meeting at which the holders of the Preferred Stock are entitled to vote, the Preferred Stock Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Receipts relating to Preferred Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the Preferred Stock) will be entitled to instruct the Preferred Stock Depositary as to the exercise of the voting rights pertaining to the amount of Preferred Stock represented by such holder's Depositary Receipts. The Preferred Stock Depositary will endeavor, insofar as practicable, to vote the amount of Preferred Stock represented by such Depositary Shares in accordance with such instructions, and the Corporation will agree to take all reasonable action which may be deemed necessary by the Preferred Stock Depositary in order to enable the Preferred Stock Depositary to do so. The Preferred Stock Depositary will abstain from voting shares of Preferred Stock to the extent it does not receive specific instructions from the holders of Depositary Receipts representing shares of Preferred Stock. The Preferred Stock Depositary's liability with respect to voting underlying shares of Preferred Stock is limited. EXCHANGE OF PREFERRED STOCK Whenever the Corporation exchanges all of the shares of Preferred Stock held by the Preferred Stock Depositary for Debt Securities or Common Stock, the Preferred Stock Depositary will exchange as of the same exchange date all Depositary Shares representing all of the shares of the Preferred Stock so exchanged for Debt Securities or Common Stock, provided the Corporation shall have issued and deposited with the Preferred Stock Depositary, Debt Securities or Common Stock for all of the shares of the Preferred Stock to be exchanged. The exchange rate per Depositary Share shall be equal to the exchange rate per share of Preferred Stock multiplied by the fraction of a share of Preferred Stock represented by one Depositary Share, plus all money and other property, if any, represented by such Depositary Shares, including all amounts paid by the Corporation in respect of dividends which on the exchange date have accumulated on the shares of Preferred Stock to be so exchanged and have not theretofore been paid. CONVERSION OF PREFERRED STOCK The Depositary Shares, as such, are not convertible or exchangeable into Common Stock or any other securities or property of the Corporation. Nevertheless, if so specified in the applicable Prospectus Supplement relating to an offering of Depository Shares, the Depositary Receipts may be surrendered by holders thereof to the Preferred Stock Depositary with written instructions to the Preferred Stock Depositary to instruct the Corporation to cause conversion or exchange of the Preferred Stock represented by the Depositary Shares evidenced by such receipts into whole shares of Common Stock, other shares of Preferred Stock or Debt Securities of the Corporation, and the Corporation has agreed that upon receipt of such instructions and any amounts payable in respect thereof, it will cause the conversion or exchange thereof utilizing the same procedures as those provided for delivery of Preferred Stock to effect such conversions or exchange. If the Depositary Shares represented by a Depositary Receipt are to be converted in part only, a new Depositary Receipt or Receipts will be issued for any Depositary Shares not to be converted or exchanged. See "Description of Preferred Stock Conversion or Exchange Rights." AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any time be amended by agreement between the Corporation and the Preferred 46 49 Stock Depositary. However, any amendment that materially and adversely alters the rights of the holders of Depositary Receipts will not be effective unless such amendment has been approved by the holders of at least a majority (or, in the case of amendments relating to or affecting rights to receive dividends or distributions or voting, redemption or conversion rights, two-thirds) of the Depositary Shares then outstanding. The Deposit Agreement may be terminated by the Corporation upon not less than 60 days' notice whereupon the Preferred Stock Depositary shall deliver or make available to each holder of Depositary Receipts, upon surrender of the Depositary Receipts held by such holder, such number of whole or fractional shares of Preferred Stock represented by such receipts. The Deposit Agreement will automatically terminate if (i) all outstanding Depositary Shares have been redeemed, (ii) there has been a final distribution in respect of the Preferred Stock in connection with any liquidation, dissolution or winding up of the Corporation and such distribution has been distributed to the holders of Depositary Receipts or (iii) each share of Preferred Stock shall have been converted or exchanged. CHARGES OF PREFERRED STOCK DEPOSITARY The Corporation will pay all transfer and other taxes and governmental charges arising solely from the existence of the Deposit Agreement. The Corporation will pay the fees and expenses of the Preferred Stock Depositary in connection with the performance of its duties under the Deposit Agreement. Holders of Depositary Receipts will pay transfer and other taxes and governmental charges and such other charges as are expressly provided in the Deposit Agreement to be for their accounts. RESIGNATION AND REMOVAL OF DEPOSITARY The Preferred Stock Depositary may resign at any time by delivering to the Corporation notice of its election to do so, and the Corporation may at any time remove the Preferred Stock Depositary, any such resignation or removal to take effect upon the appointment of a successor Preferred Stock Depositary, which successor Preferred Stock Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. MISCELLANEOUS The Preferred Stock Depositary will forward to holders of Depositary Shares any reports and communications from the Corporation which are received by the Preferred Stock Depositary with respect to the underlying Preferred Stock. Neither the Preferred Stock Depositary nor the Corporation will be liable if it is prevented from or delayed in, by law or any circumstances beyond its control, performing its obligations under the Deposit Agreement. The obligations of the Corporation and the Preferred Stock Depositary under the Deposit Agreement will be limited to performing their duties thereunder without negligence or willful misconduct, and the Corporation and the Depositary will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares or any shares of Preferred Stock unless satisfactory indemnity is furnished. The Corporation and the Preferred Stock Depositary may rely on advice of counsel or accountants, or information provided by persons presenting shares of Preferred Stock for deposit, holders of Depositary Shares or other persons believed to be authorized or competent and on documents believed to be genuine. In the event the Preferred Stock Depositary shall receive conflicting claims, requests or instructions from any holders of Depositary Receipts, on the one hand, and the Corporation, on the other hand, the Preferred Stock Depositary shall be entitled to act on such claims, requests or instructions received from the Corporation. 47 50 DESCRIPTION OF PREFERRED STOCK WARRANTS The Corporation may issue Preferred Stock Warrants for the purchase of Preferred Stock. Preferred Stock Warrants may be issued independently or together with other Securities offered by any Prospectus Supplement and may be attached to or separate from such other Securities. Each series of Preferred Stock Warrants will be issued under one or more warrant agreements (each a "Preferred Stock Warrant Agreement") to be entered into between the Corporation and a bank or trust company, as Preferred Stock Warrant Agent, all as set forth in the Prospectus Supplement relating to the particular issue of offered Preferred Stock Warrants. The Preferred Stock Warrant Agent will act solely as an agent of the Corporation in connection with the Preferred Stock Warrant Certificates and will not assume any obligation or relationship of agency or trust for or with any holders of Preferred Stock Warrant Certificates or beneficial owners of Preferred Stock Warrants. Copies of the form of Preferred Stock Warrant Agreement, including the form of Preferred Stock Warrant Certificates representing the Preferred Stock Warrants, are filed as exhibits to the Registration Statement of which this Prospectus is a part. The following summaries of certain provisions of the form of Preferred Stock Warrant Agreement and Preferred Stock Warrant Certificate do not purport to be complete and are subject to and are qualified in their entirety by reference to, all the provisions of the Preferred Stock Warrant Agreement and the Preferred Stock Warrant Certificates. GENERAL If Preferred Stock Warrants are offered, the applicable Prospectus Supplement will describe the terms of such Preferred Stock Warrants, including the following, where applicable: (1) the offering price; (2) the designation, aggregate number and terms of the series of Preferred Stock purchasable upon exercise of such Preferred Stock Warrants and minimum number of Preferred Stock Warrants that are exercisable; (3) the designation and terms of the series of Preferred Stock with which such Preferred Stock Warrants are being offered and the number of such Preferred Stock Warrants being offered with each such Preferred Stock; (4) the date on and after which such Preferred Stock Warrants and the related series of Preferred Stock will be transferable separately; (5) the number and stated values of the series of Preferred Stock purchasable upon exercise of each such Preferred Stock Warrant and the price at which such number of shares of Preferred Stock of such series may be purchased upon such exercise; (6) the date on which the right to exercise such Preferred Stock Warrants shall commence and the date on which such right shall expire (the "Preferred Stock Warrant Expiration Date"); (7) whether the Preferred Stock Warrants represented by the Preferred Stock Warrant Certificates will be issued in registered or bearer form; (8) information with respect to book-entry procedures, if any; and (9) any other terms of such Preferred Stock Warrants for the purchase of shares of Preferred Stock which shall not be inconsistent with the provisions of the Preferred Stock Warrant Agreements. Preferred Stock Warrant Certificates may be exchanged for new Preferred Stock Warrant Certificates of different denominations, may (if in registered form) be presented for registration of transfer, and may be exercised at the corporate trust office of the Preferred Stock Warrant Agent or any other office indicated in the applicable Prospectus Supplement. Prior to the exercise of any Preferred Stock Warrant, a Holder thereof shall have no rights of a holder of shares of the Preferred Stock purchasable upon such exercise, including the right to receive payment of dividends, if any, on the underlying Preferred Stock or the right to vote such underlying Preferred Stock. Prospective purchasers of Preferred Stock Warrants should be aware that special U.S. federal income tax, accounting and other considerations may be applicable to instruments such as Preferred Stock Warrants. The Prospectus Supplement relating to any issue of Preferred Stock Warrants will describe such considerations. 48 51 EXERCISE OF PREFERRED STOCK WARRANTS Each Preferred Stock Warrant will entitle the holder thereof to purchase such number of shares of Preferred Stock at such exercise price as shall be set forth in, or calculable from, the Prospectus Supplement relating to the offered Preferred Stock Warrants. After the close of business on the Expiration Date (or such later date to which such Expiration Date may be extended by the Corporation), unexercised Preferred Stock Warrants will become void. Preferred Stock Warrants may be exercised by delivery to the Preferred Stock Warrant Agent of payment as provided in the applicable Prospectus Supplement of the amount required to purchase the shares of Preferred Stock purchasable upon such exercise together with certain information set forth on the reverse side of the Preferred Stock Warrant Certificate. Preferred Stock Warrants will be deemed to have been exercised upon receipt of the exercise price, subject to the receipt, within five business days, of the Preferred Stock Warrant Certificate evidencing such Preferred Stock Warrants. Upon receipt of such payment and the Preferred Stock Warrant Certificate properly completed and duly executed at the corporate trust office of the Preferred Stock Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Corporation will, as soon as practicable, issue and deliver the shares of Preferred Stock purchasable upon such exercise. If fewer than all of the Preferred Stock Warrants represented by such Preferred Stock Warrant Certificate are exercised, a new Preferred Stock Warrant Certificate will be issued for the remaining number of Preferred Stock Warrants. MODIFICATIONS The Preferred Stock Warrant Agreement and the terms of the Preferred Stock Warrants may be amended by the Corporation and the Preferred Stock Warrant Agent, without the consent of the holders, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained therein, or in any other manner which the Corporation may deem necessary or desirable and which will not materially and adversely affect the interests of the holders. The Corporation and the Preferred Stock Warrant Agent also may modify or amend the Preferred Stock Warrant Agreement and the terms of the Preferred Stock Warrants, with the consent of the holders of not less than a majority in number of the then outstanding unexercised Preferred Stock Warrants affected, provided that no such modification or amendment that shortens the period of time during which the Preferred Stock Warrants may be exercised or otherwise materially and adversely affects the exercise rights of the holders of the Preferred Stock Warrants or reduces the number of outstanding Preferred Stock Warrants the consent of whose holders is required for modification or amendment of the Preferred Stock Warrant Agreement or the terms of the Preferred Stock Warrants may be made without the consent of the holders affected thereby. MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS If at any time there shall be a merger, consolidation, sale, transfer, conveyance or other disposition of substantially all of the assets of the Corporation, then the successor or assuming corporation shall succeed to and be substituted for the Corporation in, and the Corporation will be relieved of any further obligation under, the Preferred Stock Warrant Agreement or the Preferred Stock Warrants. ENFORCEABILITY OF RIGHTS BY HOLDERS The Preferred Stock Warrant Agent will act solely as an agent of the Corporation in connection with the issuance and exercise of Preferred Stock Warrants. The Preferred Stock Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its obligations under the Preferred Stock Warrant Agreement or Preferred Stock Warrant Certificate. Each holder may, without the consent of the Preferred Stock Warrant Agent, enforce by appropriate legal action, on his own behalf, his right to exercise his Preferred Stock Warrants. 49 52 DESCRIPTION OF COMMON STOCK GENERAL The Corporation's Articles of Incorporation authorize the issuance of 150,000,000 shares of Common Stock. At September 30, 1997, there were outstanding 54,753,009 shares of Common Stock. The Common Stock shall have the dividend, voting, liquidation and preemptive rights as set forth below unless otherwise specified in the applicable Prospectus Supplement. If Common Stock is offered, the related Prospectus Supplement will describe the terms of such Common Stock, including the following, where applicable: (1) the number of shares to be offered; (2) the initial public offering price; (3) whether such Common Stock will be issued in certificated or book-entry form; (4) book-entry procedures, if any; and (5) any additional terms of the Common Stock. The rights of holders of Common Stock will be subject to, and may be adversely affected by, the rights of holders of any Preferred Stock that has been issued and may be issued in the future. The Board of Directors may cause shares of Preferred Stock to be issued to obtain additional financing, in connection with acquisitions, to officers, directors and employees of the Corporation and its subsidiaries pursuant to benefit plans or otherwise and for other proper corporate purposes. The Common Stock will, when issued against payment therefor, be fully paid and nonassessable. Holders of Common Stock will have no preemptive rights to subscribe for any additional securities which may be issued by the Corporation. Unless otherwise specified in the applicable Prospectus Supplement, American Stock Transfer & Trust Company (or its successors) will be the transfer agent and registrar for the Common Stock. Because the Corporation is a holding company, its rights and the rights of holders of its securities, including the holders of Common Stock, to participate in the distribution of assets of any subsidiary of the Corporation upon the latter's liquidation or recapitalization will be subject to the prior claims of such subsidiary's creditors and preferred stockholders, except to the extent the Corporation may itself be a creditor with recognized claims against such subsidiary or a holder of preferred stock of such subsidiary. The common stock of the Corporation does not represent or constitute a deposit account and is not insured by the FDIC. The statements made under this caption include summaries of certain provisions contained in the Corporation's Articles of Incorporation and By-Laws and of various Articles Supplementary pursuant to which the Outstanding Preferred Stock has been issued. These statements do not purport to be complete and are qualified in their entirety by reference to such Articles of Incorporation and By-Laws and such Articles Supplementary. COMMON STOCK Dividends. The Corporation may pay dividends on the Common Stock out of funds legally available therefor when, as and if declared by the Board of Directors. Currently, the principal sources of funds available for the payment of dividends are dividends received from the Bank and earnings from investments. The payment of dividends by the Bank is subject to limitations imposed by the laws and applicable regulations of the United States and the Office of the Comptroller of the Currency. These limitations are based on the level of retained earnings of the Bank. Voting Rights. Except as described under "Description of Preferred Stock -- Outstanding Preferred Stock -- Voting Rights", the holders of the Common Stock currently possess exclusive voting rights in the Corporation. The Board of Directors of the Corporation may, however, specify voting power with respect to any Preferred Stock which may be issued in the future. Each holder of Common Stock is entitled to one vote per share. There is no cumulative voting in the election of directors. 50 53 Actions requiring approval of stockholders generally require approval by a majority vote of outstanding shares. Liquidation Rights. In the event of liquidation, dissolution, or winding up of the Corporation, the holders of its Common Stock would be entitled to receive, after payment of all of its debts, liabilities and of all sums to which holders of any Preferred Stock may be entitled, all of the remaining assets of the Corporation. Preemptive Rights. Holders of the Common Stock are not entitled to preemptive rights with respect to any shares that may be issued. DESCRIPTION OF COMMON STOCK WARRANTS The Corporation may issue Common Stock Warrants for the purchase of Common Stock. Common Stock Warrants may be issued independently or together with other Securities offered by any Prospectus Supplement and may be attached to or separate from such Securities. Each series of Common Stock Warrants will be issued under one or more warrant agreements (each a "Common Stock Warrant Agreement") to be entered into between the Corporation and a bank or trust company, as Common Stock Warrant Agent, all as set forth in the Prospectus Supplement relating to the particular issue of Common Stock Warrants. The Common Stock Warrant Agent will act solely as an agent of the Corporation in connection with the Common Stock Warrant Certificates and will not assume any obligation or relationship of agency or trust for or with any holders of Common Stock Warrant Certificates or beneficial owners of Common Stock Warrants. Copies of the form of Common Stock Warrant Agreement, including the form of Common Stock Warrant Certificates representing the Common Stock Warrants, are filed as exhibits to the Registration Statement to which this Prospectus pertains. The following summaries of certain provisions of the form of Common Stock Warrant Agreement and Common Stock Warrant Certificate do not purport to be complete and are subject to and are qualified in their entirety by reference to, all the provisions of the Common Stock Warrant Agreement and the Common Stock Warrant Certificates. GENERAL If Common Stock Warrants are offered, the related Prospectus Supplement will describe the terms of such Common Stock Warrants, including the following, where applicable: (1) the offering price; (2) the aggregate number of shares of Common Stock purchasable upon exercise of such Common Stock Warrants and minimum number of Common Stock Warrants that are exercisable; (3) the number of shares of Common Stock with which such Common Stock Warrants are being offered and the number of such Common Stock Warrants being offered with each such share of Common Stock; (4) the date on and after which such Common Stock Warrants and the related shares of Common Stock will be transferable separately; (5) the number of shares of Common Stock purchasable upon exercise of each such Common Stock Warrant and the price at which such number of shares of Common Stock may be purchased upon such exercise; (6) the date on which the right to exercise such Common Stock Warrants shall commence and the date on which such right shall expire (the "Common Stock Warrant Expiration Date"); (7) whether the Common Stock Warrants represented by the Common Stock Warrant Certificates will be issued in registered or bearer form; (8) information with respect to book-entry procedures, if any; and (9) any other terms of such Common Stock Warrants for the purchase of shares of Common Stock which shall not be inconsistent with the provisions of the Common Stock Warrant Agreements. Common Stock Warrant Certificates may be exchanged for new Common Stock Warrant Certificates of different denominations, may (if in registered form) be presented for registration of transfer, and may be exercised at the corporate trust office of the Common Stock Warrant Agent or any other office indicated in the applicable Prospectus Supplement. Prior to the exercise of any Common Stock Warrants to purchase Common Stock, Holders of such Common Stock Warrants will not have any rights of holders of shares of the Common Stock purchasable upon such exercise, including the right to 51 54 receive payments of dividends, if any, on the Common Stock purchasable upon such exercise or to exercise any applicable right to vote. Prospective purchasers of Common Stock Warrants should be aware that special U.S. federal income tax, accounting and other considerations may be applicable to instruments such as Common Stock Warrants. The Prospectus Supplement relating to any issue of Common Stock Warrants will describe such considerations. EXERCISE OF COMMON STOCK WARRANTS Each Common Stock Warrant will entitle the holder thereof to purchase such number of shares of Common Stock at such exercise price as shall be set forth in, or calculable from, the Prospectus Supplement relating to the Common Stock Warrants. After the close of business on the Expiration Date (or such later date to which such Expiration Date may be extended by the Corporation), unexercised Common Stock Warrants will become void. Common Stock Warrants may be exercised by delivery to the Common Stock Warrant Agent of payment as provided in the applicable Prospectus Supplement of the amount required to purchase the shares of Common Stock purchasable upon such exercise together with certain information set forth on the reverse side of the Common Stock Warrant Certificate. Common Stock Warrants will be deemed to have been exercised upon receipt of the exercise price, subject to the receipt, within 5 business days, of the Common Stock Warrant Certificate evidencing such Common Stock Warrants. Upon receipt of such payment and the Common Stock Warrant Certificate properly completed and duly executed at the corporate trust office of the Common Stock Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Corporation will, as soon as practicable, issue and deliver the shares of Common Stock purchasable upon such exercise. If fewer than all of the Common Stock Warrants represented by such Common Stock Warrant Certificate are exercised, a new Common Stock Warrant Certificate will be issued for the remaining amount of Common Stock Warrants. MODIFICATIONS The Common Stock Warrant Agreement and the terms of the Common Stock Warrants may be amended by the Corporation and the Common Stock Warrant Agent, without the consent of the holders, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained therein, or in any other manner which the Corporation may deem necessary or desirable and which will not materially and adversely affect the interests of the holders. The Corporation and the Common Stock Warrant Agent also may modify or amend the Common Stock Warrant Agreement and the terms of the Common Stock Warrants, with the consent of the holders of not less than a majority in number of the then outstanding unexercised Common Stock Warrants affected, provided that no such modification or amendment that shortens the period of time during which the Common Stock Warrants may be exercised or otherwise materially and adversely affects the exercise rights of the holders of the Common Stock Warrants or reduces the number of outstanding Common Stock Warrants the consent of whose holders is required for modification or amendment of the Common Stock Warrant Agreement or the terms of the Common Stock Warrants may be made without the consent of the holders affected thereby. COMMON STOCK WARRANT ADJUSTMENTS Unless otherwise indicated in the applicable Prospectus Supplement, the exercise price of, and the number of shares of Common Stock covered by a Common Stock Warrant are subject to adjustment in certain events, including: (i) the issuance of Common Stock as a dividend or distribution on the Common Stock; (ii) subdivisions and combinations of the Common Stock; (iii) the issuance to all holders of Common Stock of certain rights or warrants entitling them to subscribe for or purchase Common Stock within 45 days after the date fixed for the determination of the stockholders entitled to 52 55 receive such rights or warrants, at less than the current market price (as defined in the Common Stock Warrant Agreement for such series of Common Stock Warrants); and (iv) the distribution to all holders of Common Stock of evidences of indebtedness or assets of the Corporation (excluding certain cash dividends and distributions described below) or rights or warrants (excluding those referred to above). In the event that the Corporation shall distribute any rights or warrants to acquire capital stock pursuant to clause (iv) above (the "Capital Stock Rights"), pursuant to which separate certificates representing such Capital Stock Rights will be distributed subsequent to the initial distribution of such Capital Stock Rights (whether or not such distribution shall have occurred prior to the date of the issuance of a series of Common Stock Warrants), such subsequent distribution shall be deemed to be the distribution of such Capital Stock Rights; provided, however, that the Corporation may, in lieu of making any adjustment in the exercise price of, and the number of shares of Common Stock covered by, a Common Stock Warrant upon a distribution of separate certificates representing such Capital Stock Rights, make proper provision so that each holder of such a Common Stock Warrant who exercises such Common Stock Warrant (or any portion thereof) (a) before the record date for such distribution of separate certificates shall be entitled to receive upon such exercise shares of Common Stock issued with Capital Stock Rights and (b) after such record date and prior to the expiration, redemption or termination of such Capital Stock Rights shall be entitled to receive upon such exercise, in addition to the shares of Common Stock issuable upon such exercise, the same number of such Capital Stock Rights as would a holder of the number of shares of Common Stock that such Common Stock Warrant so exercised would have entitled the holder thereof to acquire in accordance with the terms and provisions applicable to the Capital Stock Rights if such Common Stock Warrant was exercised immediately prior to the record date for such distribution. Common Stock owned by or held for the account of the Corporation or any majority owned subsidiary shall not be deemed outstanding for the purpose of any adjustment. No adjustment in the exercise price of, and the number of shares of Common Stock covered by, a Common Stock Warrant will be made for regular quarterly or other periodic or recurring cash dividends or distributions or for cash dividends or distributions to the extent paid from retained earnings. In any such cases, no adjustment will be required unless such adjustment would require a change of at least 1% in the exercise price then in effect, provided, however, that any such adjustment not so made will be carried forward and taken into account in any subsequent adjustment; and provided further that any such adjustment not so made shall be made no later than three years after the occurrence of the event requiring such adjustment to be made or carried forward. Notwithstanding any of the foregoing, the issuance of Common Stock under any employee benefit plan of the Corporation providing for the purchase of shares of Common Stock by the Corporation's stockholders or employees at a price less than the market price for such shares and the grant or exercise of any rights thereunder, shall not require an adjustment to the exercise price of, and the number of shares of Common Stock covered by, a Common Stock Warrant. Except as stated above, the exercise price of, and the number of shares of Common Stock covered by, a Common Stock Warrant will not be adjusted for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock, or securities carrying the right to purchase any of the foregoing. In the case of (i) a reclassification or change of the Common Stock, (ii) a consolidation or merger involving the Corporation, or (iii) a sale or conveyance to another corporation of the property and assets of the Corporation as an entirety or substantially as an entirety, in each case as a result of which holders of the Corporation's Common Stock shall be entitled to receive stock, securities, other property or assets (including cash) with respect to or in exchange for such Common Stock, the holders of the Common Stock Warrants then outstanding will be entitled thereafter to convert such Common Stock Warrants into the kind and amount of shares of stock and other securities or property which they would have received upon such reclassification, change, consolidation, merger, sale or conveyance had such Common Stock Warrants been exercised immediately prior to such reclassification, change, consolidation, merger, sale or conveyance. 53 56 MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS If at any time there shall be a merger, consolidation, sale, transfer, conveyance or other disposition of substantially all of the assets of the Corporation, then the successor or assuming corporation shall succeed to and be substituted for the Corporation in, and the Corporation will be relieved of any further obligation under, the Common Stock Warrant Agreement or the Common Stock Warrants. ENFORCEABILITY OF RIGHTS BY HOLDERS The Common Stock Warrant Agent will act solely as an agent of the Corporation in connection with the issuance and exercise of Common Stock Warrants. The Common Stock Warrant Agent shall have no duty or responsibility in case of any default by the Corporation in the performance of its obligations under the Common Stock Warrant Agreement or Common Stock Warrant Certificate. Each holder may, without the consent of the Common Stock Warrant Agent, enforce by appropriate legal action, on his own behalf, his right to exercise his Common Stock Warrants. 54 57 DESCRIPTION OF TRUST PREFERRED SECURITIES The following description of the terms of the Trust Preferred Securities sets forth certain general terms of the Trust Preferred Securities to which any Prospectus Supplement may relate. The particular terms of the Trust Preferred Securities offered by any Prospectus Supplement and the extent, if any, to which such general provisions do not apply to the Trust Preferred Securities so offered will be described in the Prospectus Supplement relating to such Trust Preferred Securities. The Trust Preferred Securities are to be issued under a Declaration, which will be qualified as an indenture under the Trust Indenture Act. This summary of certain provisions of the Trust Preferred Securities and the Declarations does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all of the provisions of the Declaration, including the definitions therein of certain terms. The form of the Declaration, including the form Trust Preferred Securities and form Trust Common Securities, is filed as an exhibit to the Registration Statement of which this Prospectus is a part. GENERAL Each Trust may issue, from time to time, only one series of Trust Preferred Securities. All Trust Preferred Securities offered hereby will be guaranteed by the Corporation as and to the extent set forth below under "Description of the Guarantees." The Trust Preferred Securities will have such terms as set forth in the applicable Declaration or made part of such Declaration by the Trust Indenture Act. The Trust Preferred Securities will have the terms set forth below unless otherwise specified in the applicable Prospectus Supplement. If Trust Preferred Securities are offered, the applicable Prospectus Supplement will describe the specific terms of the Trust Preferred Securities of the Trust, including (1) the specific designation of such Trust Preferred Securities; (2) the number of Trust Preferred Securities offered and the initial public offering price; (3) the annual distribution rate (or the method of calculation thereof) and the date or dates on which such distributions shall be payable; (4) whether distributions shall be cumulative or non-cumulative, and if cumulative the date or dates from which distributions shall cumulate; (5) federal income tax considerations applicable to the Trust Preferred Securities;(6) any redemption or sinking fund provisions; (7) any conversion or exchange provisions; (8) material risk factors relating to the Trust Preferred Securities; (9) whether such Trust Preferred Securities will be issued in book-entry form; (10) whether such Trust Preferred Securities will be listed on a national securities exchange; (11) information with respect to book-entry procedures, if any; and (12) any other terms of such Trust Preferred Securities not inconsistent with the applicable Declaration or with applicable law. In connection with the issuance of Trust Preferred Securities, each Trust will issue one series of Common Securities. The terms of the Common Securities issued by a Trust will be substantially identical to the terms of the Trust Preferred Securities. The Common Securities will rank pari passu and payments thereon will be made on a pro rata basis with the Trust Preferred Securities, except that the rights of the holders of such Common Securities to payment of distributions and payments upon liquidation, redemption and maturity will be subordinated to the rights of the holders of such Trust Preferred Securities if a Debenture Event of Default shall have occurred and be continuing. Except in certain circumstances, the holders of the Common Securities will have the sole right to vote and to appoint, remove or replace any of the Issuer Trustees of a Trust. All the Common Securities of a Trust will be owned directly or indirectly by the Corporation. DISTRIBUTIONS The revenue of the Trust available for distribution to holders of the Trust Preferred Securities will be limited to payments under the Junior Subordinated Debt Securities in which the Trust will invest the proceeds from the issuance and sale of the Trust Securities. See "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 55 58 on the Trust Preferred 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 Guarantee." If set forth in the applicable Prospectus Supplement, so long as no Debenture Event of Default has occurred and is continuing, the Corporation will have the right under the Junior Subordinated 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 Distribution periods (each, 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 election, Distributions on the Trust Preferred Securities by the relevant Trust will be deferred during any such Extension Period. At the end of an Extension Period, the Corporation must pay interest then accrued and unpaid on the Junior Subordinated Debt Securities (together with interest thereon to the extent permitted by law). During any such 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 Debt) that rank pari passu in all respects with or junior in interest to the Junior Subordinated Debt Securities or (iii) make any guarantee payments with respect to any guarantee by the Corporation of the debt securities of any subsidiary of the Corporation (including Other Guarantees) if such guarantee ranks pari passu in all respects with or junior in interest to the Junior Subordinated Debt Securities (other than (a) dividends or distributions in common stock of the Corporation, (b) any declaration of a dividend in connection with the implementation of a stockholders' rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (c) payments under the Guarantee, (d) purchases or acquisitions of shares of the Corporation's common stock in connection with the satisfaction by the Corporation of its obligations under any employee benefit plan or any other contractual obligation of the Corporation (other than a contractual obligation ranking pari passu in all respects with or junior to the Junior Subordinated Debt Securities), (e) as a result of a reclassification of the Corporation's capital stock or the exchange or conversion of one class or series of the Corporation's capital stock for another class or series of the Corporation's capital stock or (f) the purchase of fractional interests in shares of the Corporation's stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged. Prior to the termination of any such Extension Period, the Corporation may further extend such Extension Period; provided that such extension does not cause such Extension Period to exceed 10 consecutive distribution 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 Trust Preferred 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 the Trust Preferred 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. REPAYMENT OR REDEMPTION The Corporation's right to redeem the Junior Subordinated Debt Securities and a Trust's corresponding right to redeem any Trust Preferred Securities at the Corporation's direction, if any, in whole or in part will be set forth in the applicable Prospectus Supplement. 56 59 Upon the repayment in full at the Stated Maturity, 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 (as set forth in a supplement to the Junior Subordinated Indenture or in a resolution of the Board of Directors of the Corporation or a committee thereof) in respect of the Junior Subordinated Debt Securities). 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 Trust Preferred 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 Trust Preferred Securities and the Common Securities. If Trust Securities are to be redeemed they will be redeemed at the applicable Redemption Price with the proceeds from the contemporaneous repayment or redemption of the Junior Subordinated Debt Securities. The applicable Redemption Price shall be payable on each Redemption Date only to the extent that the Trust has funds legally available for the payment of such Redemption Price. Unless the Corporation defaults in payment of the applicable Redemption Price on, or in the repayment of, the Junior Subordinated Debt Securities, on and after the Redemption Date, Distributions will cease to accumulate on the Trust Securities called for redemption and the rights of holders of such Trust Preferred Securities shall cease. In the event that any date fixed for redemption of Trust Preferred 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 as described under "Description of Guarantee," Distributions on Trust Preferred Securities will continue to accumulate 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 Trust Preferred Securities by tender, in the open market or by private agreement. LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES The Corporation will have the right at any time (including upon the occurrence of a Tax Event) to terminate the Trust and cause a Like Amount of the Junior Subordinated Debt Securities to be distributed to the holders of the Trust Securities in liquidation of the Trust; provided, however, that following such distribution of the Junior Subordinated Debt Securities, the Corporation agrees to use its best efforts to maintain any ratings of such Junior Subordinated Debt Securities by any nationally recognized rating agency for so long as any such Junior Subordinated Debt Securities are outstanding. Such right is subject to prior approval of the Federal Reserve if then required under applicable capital guidelines or policies of the Federal Reserve. If the Junior Subordinated Debt Securities are distributed to the holders of 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. 57 60 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 Trust Preferred Securities, the aggregate of the Liquidation Amount plus accumulated and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"). If such Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by the Trust on the Trust Preferred Securities shall be paid on a pro rata basis. The holder(s) of the Trust Common Securities will be entitled to receive distributions upon any such liquidation pro rata with the holders of the Trust Preferred Securities, except that if a Debenture Event of Default has occurred and is continuing, the Trust Preferred Securities shall have a priority over the Common Securities. See "-- Subordination of Trust Common Securities." "Like Amount" means (i) with respect to a redemption of Trust Preferred 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 Junior Subordinated Indenture, allocated to the Common Securities and to the Trust Preferred 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 (ii) with respect to a distribution of Junior Subordinated Debt Securities to holders of Trust Preferred 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 holders to whom 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 Trust Preferred 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 Trust Preferred Securities will no longer be deemed to be outstanding, (ii) DTC or its nominee, as the record holder of the Trust Preferred Securities, will receive a registered global certificate or certificates representing the Junior Subordinated Debt Securities to be delivered upon such distribution with respect to Trust Preferred Securities held by DTC or its nominee and (iii) any certificates representing Trust Preferred 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 Trust Preferred Securities and bearing accrued and unpaid interest in an amount equal to the accumulated and unpaid Distributions on such Trust Preferred Securities until such certificates are presented to the Debenture Trustee 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. 58 61 SUBORDINATION OF COMMON SECURITIES Payment of Distributions on, and the Redemption Price of, the Trust Preferred Securities and Common Securities shall be made pro rata to the holders of Trust Preferred Securities and Common Securities based on the Liquidation Amount thereof; 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 the Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions on all of the outstanding Trust Preferred 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 Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities and not on behalf of the Corporation as holder of the Common Securities, and only the holders of the Trust Preferred Securities will have the right to direct the Property Trustee to act on their behalf. EVENTS OF DEFAULT, NOTICE, WAIVER Any one of the following events will constitutes an "Event of Default" under the relevant 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 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 (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 Trust Preferred 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 59 62 the Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities. In no event will the holders of the Trust Preferred 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 the power to appoint one or more persons either to act as a co-trustee, jointly with the Property Trustee, of all or any part of such Trust's property, or to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such person or persons in such capacity any property, title, right or power deemed necessary or desirable, subject to the provisions of the Declaration. In case a Debenture Event of Default has occurred and is continuing, the Property Trustee alone shall have the power to make such appointment. MERGER, CONSOLIDATION, AMALGAMATION OR REPLACEMENT OF THE TRUSTS The Trusts may not merge with or into, consolidate, amalgamate or be replaced by, or convey, transfer or lease their 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. Each 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 Trust Preferred 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 Trust Preferred Securities or (b) substitutes for the Trust Preferred Securities other securities having substantially the same terms as the Trust Preferred Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Trust Preferred 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 Trust Preferred Securities are then listed or traded, if any, (iv) such merger, 60 63 consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Trust Preferred 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 Trust Preferred Securities (including any Successor Securities) in any material respect, (vi) such successor entity has a purpose identical to that of the Trust, (vii) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Corporation has received an opinion from independent counsel to the Trust experienced in such matters to the effect that (a) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the holders of the Trust Preferred 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 the 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 Guarantee -- Amendments and Assignment", in the applicable Prospectus Supplement and as otherwise required by law and the Declaration, the holders of the Trust Preferred Securities will have no voting rights. 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 Trust Securities, (ii) waive any past default that is waivable under Section 5.13 of the Junior Subordinated 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 Junior Subordinated 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 Trust Preferred Securities; provided, however, that where a consent under the Junior Subordinated 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 Trust Preferred Securities. The Issuer Trustees shall not revoke any action previously authorized or approved by a vote of the holders of the Trust Preferred Securities except by subsequent vote of such holders. In addition to obtaining the foregoing approvals of such holders of the Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities are entitled to vote, or of any 61 64 matter upon which action by written consent of such holders is to be taken, to be given to each holder of record of Trust Preferred Securities in the manner set forth in the Declaration. The Declaration may be amended from time to time by the Corporation, the Property Trustee and the Administrative Trustees, without the consent of the holders of the Trust Securities, (i) to cure any ambiguity, correct or supplement any provision in the Declaration that may be inconsistent with any other provision, or to make any other provisions with respect to matters or questions arising under the Declaration, which shall not be inconsistent with the other provisions of the Declaration, or (ii) to modify, eliminate or add to any provisions of the Declaration to such extent as shall be necessary to ensure that the Trust will be classified for United States Federal income tax purposes as a grantor trust at all times that any Trust Securities are outstanding or to ensure that the Trust will not be required to register as an "investment company" under the Investment Company Act; provided, however, that in the case of clause (i), such action shall not adversely affect in any material respect the interests of any holder of Trust Securities, and any amendments of the Declaration shall become effective when notice thereof is given to the holders of the Trust Securities. The Declaration may be amended by the Issuer Trustees and the Corporation with (i) the consent of holders representing not less than a majority (based upon Liquidation Amounts) of the outstanding Trust Securities, and (ii) receipt by the Issuer Trustees of an opinion of counsel to the effect that such amendment or the exercise of any power granted to the Issuer Trustees in accordance with such amendment will not affect the Trust's status as a grantor trust for United States Federal income tax purposes or the Trust's exemption from status as an "investment company" under the Investment Company Act. In addition, without the consent of each holder of Trust Securities, the Declaration may not be amended to (i) change the amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the amount of any Distribution required to be made in respect of the Trust Securities as of a specified date or (ii) restrict the right of a holder of Trust Securities to institute suit for the enforcement of any such payment on or after such date. No vote or consent of the holders of Trust Preferred Securities will be required for the Trust to redeem and cancel the Trust Preferred Securities in accordance with the Declaration. Notwithstanding that holders of the Trust Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Trust Preferred 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 Junior Subordinated Indenture, the Corporation, as borrower, has agreed to pay all debts and other obligations (other than with respect to the Trust Preferred Securities) and all costs and expenses of the Trusts (including costs and expenses relating to the organization of the Trusts, the fees and expenses of the Issuer Trustees and the costs and expenses relating to the operation of the Trusts) and any offering of Trust Preferred Securities, 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 Trusts might become subject. The foregoing obligations of the Corporation under the Junior Subordinated 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 will 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 will also agree in the Junior Subordinated Indenture to execute such additional agreement(s) as may be necessary or desirable to give full effect to the foregoing. 62 65 FORM OF TRUST PREFERRED SECURITIES Unless otherwise specified in the applicable Prospectus Supplement, Trust Preferred Securities will not be issued in definitive form. The Trust Preferred Securities initially will be represented by one or more Trust Preferred Securities in registered, global form (collectively, the "Global Trust Preferred Securities"). The Global Trust Preferred Securities will be deposited upon issuance with or on behalf of DTC, in New York, New York, and 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. See "Book-Entry Procedures." REGISTRAR AND TRANSFER AGENT The Property Trustee will act as registrar and transfer agent for the Trust Preferred Securities. Registration of transfers of the Trust Preferred 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 Trust Preferred 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 reasonable indemnity 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 Trust Preferred Securities or the Trust Common Securities are entitled under the Declaration to vote, then the Property Trustee shall take such action as is directed by the Corporation and, if not so directed, shall take such action as it deems advisable and in the best interests of the holders of the Trust Securities and will have no liability except for its own bad faith, negligence or willful misconduct. Unless otherwise indicated in the applicable Prospectus Supplement, the Property Trustee will be Bankers Trust Company. The Corporation and the Bank maintain deposit accounts and conduct banking transactions with Bankers Trust Company in the ordinary course of their businesses. ADMINISTRATIVE TRUSTEES The Administrative Trustees are authorized and directed to conduct the affairs of and to operate the Trusts in such a way that the Trusts 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 GUARANTEE A Guarantee will be executed and delivered by the Corporation concurrently with the issuance by a Trust of the Trust Securities for the benefit of the holders from time to time of the Trust Securities. 63 66 Unless otherwise specified in the applicable Prospectus Supplement, Bankers Trust Company will act as trustee (the "Guarantee Trustee") under the Guarantee. The Guarantee will be qualified under the Trust Indenture Act. This summary of certain provisions of the 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 Guarantee, including the definitions therein of certain terms, and the Trust Indenture Act. The Guarantee Trustee will hold the Guarantee for the benefit of the holders of the Trust Securities. The form of Guarantee is filed as an exhibit to the Registration Statement of which this Prospectus is a part. GENERAL The Corporation will irrevocably agree to pay in full on a subordinated basis, to the extent set forth herein, the Guarantee Payments 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 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 Trust 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 Trust 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 Trust Preferred Securities and will not have funds legally available therefor. The Corporation has, through the Guarantee, the Declaration, the Junior Subordinated Debt Securities and the Junior Subordinated Indenture, taken together, fully, irrevocably and unconditionally guaranteed all of the Trust's obligations under the Trust Preferred 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 Trust Preferred Securities. See "Relationship Among Trust Preferred Securities, Junior Subordinated Debt Securities and 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 the Junior Subordinated Debt Securities. 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. The Guarantee does not place a limitation on the 64 67 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. The Guarantee will rank pari passu with any similar Guarantee Agreements issued by the Corporation on behalf of the holders of trust Securities issued by any other Republic New York Capital trust (the "other Guarantees"). 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 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. AMENDMENTS AND ASSIGNMENT Except with respect to any changes which do not materially adversely affect the rights of holders of the Trust Preferred 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 the outstanding Trust Preferred Securities. The manner of obtaining any such approval will be as set forth under "Description of Trust Preferred 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 Trust Preferred 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 Trust Preferred 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 Trust Preferred 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, the Guarantee Trustee 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. MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS The Guarantee provides that the Corporation shall not consolidate with or merge with or into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and no Person shall consolidate with or merge with or into the Corporation or convey, transfer or lease its properties and assets substantially as an entirety to the Corporation, unless (i) in case the Corporation consolidates with or merges with or into another Person or conveys or transfers its properties and assets substantially as an entirety to any Person, the successor Person is organized under the laws of the United States or any state or the District of Columbia and such successor Person expressly assumes the Corporation's obligations on the 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 Junior Subordinated Indenture and 65 68 does not give rise to any breach or violation of the Declaration or the Junior Subordinated Indenture; and (iv) certain other conditions as prescribed in the Guarantee are met. 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 Trust 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. 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, will undertake 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 Trust Preferred Securities unless it is offered reasonable indemnity against the costs, expenses and liabilities that might be incurred thereby. Unless otherwise indicated in the applicable Prospectus Supplement, Bankers Trust Company will serve as Guarantee Trustee. The Corporation and the Bank maintain deposit accounts and conduct banking transactions with Bankers Trust Company in the ordinary course of their businesses. RELATIONSHIP AMONG TRUST PREFERRED SECURITIES, JUNIOR SUBORDINATED DEBT SECURITIES AND GUARANTEE FULL AND UNCONDITIONAL GUARANTEE Payments of Distributions and other amounts due on the Trust Preferred 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 Junior Subordinated 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 Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities. The Guarantee does not cover payment of Distributions when the Trust does not have funds legally available to pay such Distributions. In such event, the remedy of a holder of Trust Preferred 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 Trust Preferred Securities, primarily because (i) the aggregate principal amount or Prepayment Price of the Junior Subordinated Debt Securities will be 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 66 69 payment dates on the Junior Subordinated Debt Securities will match the Distribution rate and Distribution and other payment dates for the Trust Securities; (iii) the Corporation shall pay for all costs, expenses and liabilities of the Trust except the Trust's obligations to holders of Trust Securities under such Trust Securities; and (iv) the Declaration provides that the Trust will not engage in any activity that is not consistent with the limited purposes thereof. ENFORCEMENT RIGHTS OF HOLDERS OF TRUST PREFERRED SECURITIES A holder of any Trust Preferred 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 Junior Subordinated 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. A principal difference between the rights of a holder of a Trust Preferred 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 Trust Preferred 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 legally available for the payment of such Distributions. LIMITED PURPOSE OF THE TRUST The Trust Preferred Securities will evidence a beneficial interest in the Trust, and the Trust will exist for the sole purposes of issuing the Trust Securities, investing the proceeds of the Trust Securities in Junior Subordinated Debt Securities, making Distributions and engaging in other activities necessary or incidental thereto. 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 Preferred Securities will be entitled to receive, out of assets held by the Trust, the Liquidation Distribution in cash. See "Description of Trust Preferred 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 Junior Subordinated Indenture, but entitled to receive payment in full of principal and interest, before any stockholders of the Corporation receive payments or distributions. Since the Corporation is the guarantor under the Guarantee and has agreed to pay for all costs, expenses and liabilities of the Trust (other than the Trust's obligations to the holders of its Trust Securities), the positions of a holder of Trust Preferred 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. 67 70 BOOK-ENTRY PROCEDURES The Offered Securities may be issued in the form of one or more global certificates (each a "Global Security") registered in the name of a depositary or a nominee of a depositary and held through one or more international and domestic clearing systems, principally, the book-entry system operated by The Depository Trust Company ("DTC") in the United States, and Morgan Guaranty Trust Company of New York, Brussels Office, as operator of the Euroclear System ("Euroclear") and Cedel Bank, societe anonyme ("Cedel") in Europe. No person who acquires an interest in such Global Securities will be entitled to receive a certificate representing such person's interest in such Global Securities except as set forth herein or in the applicable Prospectus Supplement. Unless and until definitive Offered Securities are issued, all references to actions by holders of Offered Securities issued in global form shall refer to actions taken by DTC, Euroclear or Cedel, as the case may be, upon instructions from their respective participants, and all references herein to payments and notices to such holders shall refer to payments and notices to DTC or its nominee, Euroclear or Cedel, as the case may be, as the registered holder of such Offered Securities. Electronic securities and payment transfer, processing, depositary and custodial links have been established among these systems and others, either directly or indirectly, which enable Global Securities to be issued, held and transferred among the clearing system through these links. Although DTC, Euroclear and Cedel have agreed to the procedures described below in order to facilitate transfers of Global Securities among participants of DTC, Euroclear and Cedel, they are under no obligation to perform or continue to perform such procedures and such procedures may be modified or discontinued at any time. Neither the Corporation, nor any Trustee, nor any Warrant Agent, nor any registrar and transfer agent with respect to Offered Securities hereby will have any responsibility for the performance by DTC, Euroclear or Cedel or their respective participants or indirect participants or the respective obligations under the rules and procedures governing their operations. Unless otherwise specified herein or in the applicable Prospectus Supplement, Offered Securities in the form of a Global Security will be registered in the name of DTC or a nominee thereof. DTC. DTC has informed the Corporation that it is a limited purpose trust company organized under the New York Banking Law and a "banking organization" within the meaning of the New York Banking Law, that it is a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered pursuant to Section 17A of the Exchange Act, and that it was created to hold securities for its participating organizations ("Participants") and to facilitate the clearance and settlement of securities transactions among Participants through electronic book-entry, thereby eliminating the need for physical movement of certificates. Participants include securities brokers and dealers, banks, trust companies and clearing corporations, and may include certain other organizations. Indirect access to the DTC system also is available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly ("Indirect Participants"). Holders that are not Participants or Indirect Participants but that desire to purchase, sell or otherwise transfer ownership of, or other interests in, Global Securities may do so only through Participants and Indirect Participants. Under a book-entry format, holders may experience some delay in their receipt of payments, as such payments will be forwarded by the agent designated by the Corporation to Cede, as nominee for DTC. DTC will forward such payments to its Participants, which thereafter will forward them to Indirect Participants or holders. Holders will not be recognized by the applicable Trustee or Depositary or by the Corporation as registered holders of the Global Securities entitled to the benefits of the applicable Indenture or Deposit Agreement or Warrant Agreement or the terms of the Offered Securities. Holders that are not Participants will be permitted to exercise their rights as such only indirectly through and subject to the procedures of Participants and, if applicable, Indirect Participants. Under the rules, regulations and procedures creating and affecting DTC and its operations as currently in effect (the "Rules"), DTC will be required to make book-entry transfers of Global 68 71 Securities among Participants and to receive and transmit payments to Participants. Participants and Indirect Participants with which holders have accounts with respect to the Global Securities similarly are required by the Rules to make book-entry transfers and receive and transmit such payments on behalf of their respective holders. Because DTC can act only on behalf of Participants, which in turn act only on behalf of holders or Indirect Participants, and on behalf of certain banks, trust companies and other persons approved by it, the ability of a holder to pledge Global Securities to persons or entities that do not participate in the DTC system, or to otherwise act with respect to such Global Securities, may be limited due to the absence of physical certificates for such Global Securities. DTC has advised the Corporation that DTC will take any action permitted to be taken by a registered holder of any Global Securities under the applicable Indenture or Deposit Agreement or Warrant Agreement or the terms of the Offered Securities only at the direction of one or more Participants to whose accounts with DTC such Global Securities are credited. A Global Security will be exchangeable for the relevant definitive Offered Securities registered in the names of persons other than DTC or its nominee only if (i) DTC notifies the Corporation that it is unwilling or unable to continue as depositary for such Global Security 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 in order to act as such depository, (ii) the Corporation executes and delivers to the applicable Trustee or Depositary or Warrant Agent an order complying with the requirements of the applicable Indenture or Deposit Agreement or Warrant Agreement that such Global Security shall be so exchangeable or (iii) in the case of Debt Securities or Junior Subordinated, there has occurred and is continuing a default in the payment of principal of, premium, if any, or interest, if any, on, such Debt Securities or such Junior Subordinated Debt Securities or an Event of Default or an event that, with the giving of notice or lapse of time, or both, would constitute an Event of Default with respect to such Debt Securities or such Junior Subordinated Debt Securities. Any Global Security that is exchangeable pursuant to the preceding sentence will be exchangeable for definitive Securities registered in such names as DTC directs. Upon the occurrence of any event described in the immediately preceding paragraph, DTC is generally required to notify all Participants of the availability of definitive Offered Securities. Upon surrender by DTC of the Global Security representing the Offered Securities and delivery of instructions for re-registration, the applicable Trustee or Depositary or Warrant Agent or the applicable registrar, as the case may be, will reissue the Global Securities as definitive Offered Securities, and thereafter such Trustee, Depositary, Warrant Agent or registrar will recognize the holders of such definitive Offered Securities as registered holders of Offered Securities entitled to the benefits of the applicable Indenture or Deposit Agreement or Warrant Agreement or the terms of the Offered Securities, as the case may be. Except as described above, a Global Security may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or to a successor depositary appointed by the Corporation. Except as described above, DTC may not sell, assign, transfer or otherwise convey any beneficial interest in a Global Security evidencing all or part of the Securities unless such beneficial interest is in an amount equal to an authorized denomination for the Securities. Cedel. Cedel is incorporated under the laws of Luxembourg as a professional depositary. Cedel holds securities for its participants and facilitates the clearance and settlement of securities transactions between its participants through electronic book-entry changes in accounts of its participants, thereby eliminating the need for physical movement of certificates. Cedel provides to its participants, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing. Cedel interfaces with domestic markets in several countries. As a professional depositary, Cedel is subject to regulation by the Luxembourg Monetary Institute. Cedel participants are financial institutions around the world, including securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. 69 72 Indirect access to Cedel is also available to others that clear through or maintain a custodial relationship with a Cedel participant either directly or indirectly. Payments with respect to Offered Securities held beneficially through Cedel will be credited to cash accounts of Cedel participants in accordance with its rules and procedures, to the extent received by Cedel. Euroclear. Euroclear was created in 1968 to hold securities for its participants and to clear and settle transactions between its participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates and any risk from lack of simultaneous transfers of securities and cash. Euroclear provides various other services, including securities lending and borrowing, and interfaces with domestic markets in several countries. Euroclear is operated by the Brussels, Belgium office of Morgan Guaranty Trust Company of New York (the "Euroclear Operator"), under contract with Euroclear Clearance Systems, S.C., a Belgian cooperative corporation (the "Cooperative"). All operations are conducted by the Euroclear Operator, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear Operator, not the Cooperative. The Cooperative establishes policy for Euroclear on behalf of Euroclear participants. Euroclear participants include banks (including central banks), securities brokers and dealers and other professional financial intermediaries and may include Dealers. Indirect access to Euroclear is also available to others that clear through or maintain a custodial relationship with a Euroclear participant, either directly or indirectly. Securities clearance accounts and cash accounts with the Euroclear Operator are governed by the Terms and Conditions Governing Use of Euroclear and the related Operating Procedures of the Euroclear System, and applicable Belgian law (collectively, the "Terms and Conditions"). The Terms and Conditions govern transfers of securities and cash within Euroclear, withdrawals of securities and cash from Euroclear, and receipts of payments with respect to securities in Euroclear. All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts. The Euroclear Operator nets under the Terms and Conditions only on behalf of Euroclear participants, and has no record of or relationship with persons holding through Euroclear participants. Payments with respect to Securities held beneficially through Euroclear will be credited to the cash accounts of Euroclear participants in accordance with the Terms and Conditions, to the extent received by Euroclear. Other Clearing Systems. Any other clearing system which shall be available for a particular issuance of Offered Securities, including the clearance and settlement procedures for such clearing system, will be described in the applicable Prospectus Supplement. CURRENCY RISKS GENERAL Debt Securities, Debt Warrants, Currency Warrants, Stock-Index Warrants and Other Warrants of a series may be denominated in or linked to such foreign currencies or units of two or more currencies as may be designated by the Corporation at the time of offering ("Foreign Currency Securities"). ADDITIONAL FACTORS MAY BE SET FORTH IN CONNECTION WITH A SPECIFIC FOREIGN CURRENCY SECURITY IN THE APPLICABLE PROSPECTUS SUPPLEMENT. Unless otherwise indicated in the applicable Prospectus Supplement, a Foreign Currency Security will not be sold in, or to residents of, the country that issues the Specified Currency (as defined below) in which such Foreign Currency Security is denominated. The information set forth below and in any applicable Prospectus Supplement is by necessity incomplete and prospective purchasers of Foreign Currency Securities should consult their own financial and legal advisors with respect to any matters 70 73 that may affect the purchase or holding of a Foreign Currency Security or the receipt of payments of principal of, premium, if any, and interest, if any, on a Foreign Currency Security in a Specified Currency. EXCHANGE RATES AND EXCHANGE CONTROLS An investment in Foreign Currency Securities may entail significant risks that are not associated with a similar investment in a security denominated in U.S. dollars. Such risks may include, without limitation, the possibility of significant changes in the rate of exchange between the U.S. dollar and the currency or currency unit designated by the Corporation at the time of offering (the "Specified Currency") and the possibility of the imposition or modification of foreign exchange controls by either the United States or foreign governments. Such risks generally depend on economic and political events and the supply of and demand for the relevant currencies, over which the Corporation has no control. In recent years, rates of exchange between the U.S. dollar and many foreign currencies or currency units have been highly volatile and such volatility may be expected in the future. The exchange rate between the U.S. dollar and a foreign currency or currency unit is at any moment a result of the supply of and demand for such currencies, and changes in the rate result over time from the interaction of many factors, among which are rates of inflation, interest rate levels, balance of payments and the extent of governmental surpluses or deficits in the countries of such currencies. These factors are in turn sensitive to the monetary, fiscal and trade policies pursued by such governments and those of other countries important to international trade and finance. Fluctuations in any particular exchange rate that have occurred in the past are not necessarily indicative, however, of the fluctuations in the rate that may occur during the term of any Foreign Currency Security. Depreciation of the Specified Currency applicable to a Foreign Currency Security against the U.S. dollar would generally result in a decrease in the U.S. dollar-equivalent yield of such Foreign Currency Security, in the U.S. dollar-equivalent value of the principal repayable at maturity of such Foreign Currency Security and, generally, in the U.S. dollar-equivalent market value of such Foreign Currency Security. Foreign exchange rates can either be fixed by sovereign governments or float. Exchange rates of most economically developed noncommunist nations are permitted to fluctuate in value relative to the U.S. dollar. Sovereign governments, however, rarely voluntarily allow their currencies to float freely in response to economic forces. In fact, such governments use a variety of techniques, such as intervention by a country's central bank or imposition of regulatory controls or taxes, to affect the exchange rate of their currencies. Governments may also issue a new currency to replace an existing currency or alter the exchange rate or relative exchange characteristics by devaluation or revaluation of a currency. Thus, a special risk in purchasing Securities that are denominated in or linked to a foreign currency or currency unit is that their U.S. dollar-equivalent yields could be affected by governmental actions that could change or interfere with a theretofore freely determined currency valuation, by fluctuations in response to other market forces and by the movement of currencies across borders. Unless otherwise specified in the applicable Prospectus Supplement, there will be no adjustment or change in the terms of the Foreign Currency Securities if exchange rates should become fixed or in the event of any devaluation or revaluation or imposition of exchange or other regulatory controls or taxes, or in the event of other developments, affecting the U.S. dollar or any applicable currency or currency unit. Governments have imposed from time to time exchange controls and may in the future impose or revise exchange controls at or prior to a Foreign Currency Security's maturity. Even if there are no exchange controls in effect with respect to a Specified Currency, it is possible that the Specified Currency for any particular Foreign Currency Security would not be available at such Foreign Currency Security's maturity due to other circumstances beyond the control of the Corporation. EUROPEAN MONETARY UNION Under Article 109G of the Treaty establishing the European Communities, as amended by the Treaty on European Union (the "Treaty"), the currency composition of the ECU may not be changed. The Treaty contemplates that European monetary union will occur in three stages, the second of which 71 74 began on January 1, 1994 with the entry into force of the Treaty. The Treaty provides that, at the start of the third stage of European monetary union, the value of the ECU as against the currencies of the member states participating in the third stage will be irrevocably fixed and the ECU will become a currency in its own right. In contemplation of that third stage, the European Council meeting in Madrid on December 16, 1995 decided that the name of that currency will be the Euro and that, in accordance with the Treaty, substitution of the Euro for the ECU will be at the rate of one Euro for one ECU. From the start of the third stage of European monetary union, all payments in respect of Securities payable in ECU and other currencies that will be replaced by the Euro will be payable in the Euro at the rate then established pursuant to the Treaty. JUDGMENTS If an action based on Foreign Currency Securities were commenced in a court of the United States, it is likely that such court would grant judgment relating to such Foreign Currency Securities only in U.S. dollars. It is not clear, however, whether, in granting such judgment, the rate of conversion into U.S. dollars would be determined with reference to the date of default, the date on which judgment is rendered or some other date. Holders of Foreign Currency Securities would bear the risk of exchange rate fluctuations between the time the amount of the judgment is calculated and the time the applicable Trustee or Warrant Agent converts U.S. dollars to the Specified Currency for payment of the judgment. ERISA MATTERS The Corporation and its affiliates, including the Trusts, may each be considered a "party in interest" (within the meaning of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or a "disqualified person (within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code")) with respect to many employee benefit plans ("Plans") that are subject to ERISA. The purchase of Offered Securities by a Plan that is subject to the fiduciary responsibility provisions of ERISA or the prohibited transaction provisions of Section 4975 of the Code (including individual retirement arrangements and other plans described in Section 4975(e)(1) of the Code) and with respect to which the Corporation or any affiliate of the Corporation is a service provider (or otherwise is a party in interest or a disqualified person) may constitute or result in a prohibited transaction under ERISA or Section 4975 of the Code, unless such Offered Securities are acquired pursuant to and in accordance with an applicable exemption. Any pension or other employee benefit plan considering the acquisition of Offered Securities should consult with its counsel. 72 75 PLAN OF DISTRIBUTION The Corporation or the Trusts may sell the Offered Securities: (i) through underwriters; (ii) to dealers; (iii) through agents; or (iv) directly to a limited number of institutional purchasers or to a single purchaser. The Prospectus Supplement with respect to the Offered Securities will set forth the name or names of the underwriters, if any, any underwriting discounts and other items constituting underwriters' compensation, any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers. If underwriters are used in a sale of any Offered Securities, such Offered Securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The Offered Securities may be offered to the public through a single underwriter or through a group of underwriters. Unless otherwise set forth in the Prospectus Supplement, the obligations of the underwriters to purchase the Offered Securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all the Offered Securities if any are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. If a dealer is utilized in the sale of any Offered Securities in respect of which this Prospectus is delivered, the Corporation will sell such Offered Securities to the dealer, as principal. The dealer may then resell such Offered Securities to the public at varying prices to be determined by such dealer at the time of resale. The name of the dealer and the terms of the transaction will be set forth in the Prospectus Supplement relating thereto. The Offered Securities may be sold by the Corporation through agents designated by the Corporation or the Trusts from time to time. Any such agent involved in the offer or sale of the Offered Securities offered in respect of which this Prospectus is delivered will be named, and any fees or commissions payable by the Corporation or the Trusts to such agent will be set forth, in the Prospectus Supplement. Unless otherwise indicated in the Prospectus Supplement, any such agent will be acting on a best efforts basis for the period of its appointment. The Offered Securities may be sold directly by the Corporation or the Trusts to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act of 1933 with respect to any resale thereof. The terms of any such sales will be described in the Prospectus Supplement relating thereto. The Corporation may also issue contracts under which the counterparty may be required to purchase Debt Securities, Preferred Stock or Depositary Shares. Such contracts would be issued with Debt Securities, Preferred Stock or Depositary Shares and/or Warrants in amounts, at prices and on terms to be set forth in a Prospectus Supplement. If so indicated in the Prospectus Supplement, the Corporation or the Trusts will authorize underwriters, dealers and agents to solicit offers by certain specified institutions to purchase the Offered Securities from the Corporation or the Trusts at the public offering price set forth in the Prospectus Supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts will be subject only to those conditions set forth in the Prospectus Supplement, and the Prospectus Supplement will set forth the commission payable for solicitation of such contracts. Underwriters, dealers and agents may be entitled, under agreements entered into with the Corporation or the Trusts to indemnification by the Corporation against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. Any such underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for, the Corporation or the Trusts in the ordinary course of business. The place and time of delivery of the Offered Securities will be set forth in the Prospectus Supplement. 73 76 LEGAL OPINIONS The legality of the Corporation Securities offered hereby 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. Certain matters relating to the validity under Delaware law of the Trust Securities offered hereby will be passed upon for the Corporation and the Trusts by Potter Anderson & Corroon, Delaware Counsel to the Corporation and the Trusts. If underwriters are utilized the legality of the Offered Securities offered hereby will be passed upon on behalf of such underwriters by such counsel, which will be named in the Prospectus Supplement, as such underwriters may select. Mr. Rosenblum and underwriters' counsel may rely on the opinion of Potter Anderson & Corroon as to matters of Delaware law and on the opinion of Piper & Marbury L.L.P. as to matters of Maryland law. EXPERTS The consolidated statements of condition of the Corporation as of December 31, 1996 and 1995 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, 1996 and the consolidated statements of condition of the Bank as of December 31, 1996 and 1995 included in the Corporation's Annual Report on Form 10-K for the year ended December 31, 1996 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. ------------------------ NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR ANY UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION SINCE THE DATES HEREOF OR THEREOF. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY PERSON OR BY ANYONE IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF OR THEREOF. ------------------------ 74 77 TABLE OF CONTENTS
PAGE ---- Available Information................................................................... 2 Incorporation of Certain Documents by Reference......................................... 2 Republic New York Corporation........................................................... 4 Description of the Trusts............................................................... 9 Application of Proceeds................................................................. 9 Description of Debt Securities.......................................................... 11 Description of Junior Subordinated Debt Securities...................................... 21 Description of Debt Warrants............................................................ 28 Description of Currency Warrants........................................................ 30 Description of Stock-Index Warrants..................................................... 33 Description of Other Warrants........................................................... 35 Description of Preferred Stock.......................................................... 38 Description of Depositary Shares........................................................ 44 Description of Preferred Stock Warrants................................................. 48 Description of Common Stock............................................................. 50 Description of Common Stock Warrants.................................................... 51 Description of Trust Preferred Securities............................................... 55 Description of Guarantee................................................................ 63 Relationship Among Trust Preferred Securities, Junior Subordinated Debt Securities and Guarantee............................................................................. 66 Book-Entry Procedures................................................................... 68 Currency Risks.......................................................................... 70 ERISA Matters........................................................................... 72 Plan of Distribution.................................................................... 73 Legal Opinions.......................................................................... 74 Experts................................................................................. 74
75 78 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The estimated expenses, other than underwriting discounts and commissions, in connection with the offerings of the Securities are as follows: Securities Act Registration Fee................................ $263,968 "Blue Sky" Fees and Expenses................................... 12,500 Printing and Engraving Expenses................................ 110,000 Legal Fees and Expenses........................................ 100,000 Fees of Rating Agencies........................................ 200,000 Accounting Fees and Expenses................................... 50,000 Fees of Indenture Trustees (including counsel fees)............ 50,000 Stock Exchange Listing Fees.................................... 60,000 Miscellaneous.................................................. 15,000 -------- $861,468 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS OF THE CORPORATION. Pursuant to Article Ninth of the Registrant's Articles of Incorporation and the provisions of Section 2-418 of the General Corporation Law of Maryland, as amended, the Registrant 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 Registrant, indemnification may not be made if such person has been adjudged liable to the Registrant. 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 Registrant 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 Registrant and (b) a written undertaking to the Registrant 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 Registrant's Articles of Incorporation also provides that the Registrant may indemnify any person who is or was an employee or agent of the Registrant or is or was serving at the request of the Registrant 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 Registrant. Any indemnification shall be made by the Registrant only as authorized in the specific case upon a determination by the Registrant's Board of Directors, by independent legal counsel in a written opinion or by the stockholders of the Registrant 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 Registrant may be entitled by law or other agreement or otherwise. II-1 79 Indemnification of Trustees of the Trusts Each Declaration will provide the Corporation, as Depositor, 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 the 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 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. Reference is made to Section 7 of the Form of Underwriting Agreement for the Corporation Securities and Section 6 of the Form of Underwriting Agreement for the Trust Preferred Securities for additional provisions for the indemnification of directors, controlling persons, Trustees and certain officers of the Registrants by the underwriters. The Forms of Underwriting Agreement are an exhibit to the Registration Statement. 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 Registrant's Articles of Incorporation and Section 2-418 of the General Corporation Law of Maryland, as amended. ITEM 16. EXHIBITS.
EXHIBITS - -------- 1.1* Form of Underwriting Agreement. 1.2* Form of Underwriting Agreement for Trust Preferred Securities. 3.1 Articles of Incorporation of the Corporation as amended through April 21, 1993 and as supplemented.(1) 3.3 By-Laws of the Corporation as amended through October 16, 1996.(2) 4.1 Standard Multiple-Series Indenture Provisions.(3) 4.2 Senior Indenture, dated as of May 15, 1986.(4) 4.3 First Supplemental Indenture to Senior Indenture, dated as of May 15, 1991.(5) 4.4 Second Supplemental Indenture to Senior Indenture, dated as of April 15, 1993.(6) 4.5 Subordinated Indenture, dated as of May 15, 1986.(7) 4.6 First Supplemental Indenture to Subordinated Indenture, dated as of May 15, 1991.(5) 4.7 Second Supplemental Indenture to Subordinated Indenture, dated as of April 15, 1993.(6) 4.8 Subordinated Indenture, dated as of October 15, 1992.(8) 4.9 First Supplemental Indenture to 1992 Subordinated Indenture, dated as of April 15, 1993.(6) 4.10* Junior Subordinated Indenture, dated as of December 15, 1997. 4.11 Form of Debt Warrant Agreement for Warrants attached to Debt Securities. 4.12 Form of Debt Warrant Agreement for Warrants not attached to Debt Securities. 4.13 Form of Currency Warrant Agreement.(9) 4.14 Form of Stock-Index Warrant Agreement.(9)
II-2 80
EXHIBITS - -------- 4.15 Form of Other Warrant Agreement.(9) 4.16 Form of Common Stock Warrant Agreement.(9) 4.17 Form of Preferred Stock Warrant Agreement.(9) 4.18 Form of Deposit Agreement.(9) 4.19 Form of Senior Security.(10) 4.20 Form of Subordinated Security.(10) 4.21 Form of Junior Subordinated Debt Security.(11) 4.22 Form of Articles Supplementary for Preferred Stock.(12) 4.23 Form of Trust Preferred Security.(13) 4.24** Certificate of Trust of Republic New York Capital III. 4.25** Certificate of Trust of Republic New York Capital IV. 4.26** Declaration of Trust of Republic New York Capital III. 4.27** Declaration of Trust of Republic New York Capital IV. 4.28** Form of Amended and Restated Declaration of Trust 4.29** Form of Trust Guarantee 5.1* Opinion and consent of William F. Rosenblum, Jr., Senior Vice President and Deputy General Counsel of the Corporation, regarding the Corporation Securities. 5.2* Opinion and consent of Potter Anderson & Corroon regarding the Trust Securities. 8 Opinion of Tax Counsel.(14) 12.1** Calculation of Ratios of Earnings to Fixed Charges -- Consolidated. 12.2** Calculation of Ratios of Earnings to Combined Fixed Charges and Preferred Stock Dividends -- Consolidated. 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 Potter Anderson & Carroon (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 III. 24.3** Form of Power of Attorney of Republic New York Capital IV. 25.1 Statement on Form T-1 of eligibility of Citibank, N.A., as trustee under the Senior Indenture, the Subordinated Indenture, and the 1992 Subordinated Indenture.(6)(9) 25.2* Statement on Form T-1 of eligibility of Bankers Trust Company, as trustee under the Junior Subordinated Indenture. 25.3 Statement on Form T-1 of eligibility of Bankers Trust Company, as trustee under the Amended and Restated Declaration of Republic New York Capital III.(14) 25.4 Statement on Form T-1 of eligibility of Bankers Trust Company, as trustee under the Amended and Restated Declaration of Republic New York Capital IV.(14) 25.5 Statement on Form T-1 of eligibility of Bankers Trust Company, as trustee under the Trust Guarantee relating to the Trust Preferred Securities of Republic New York Capital III.(14) 25.6 Statement on Form T-1 of eligibility of Bankers Trust Company, as trustee under the Trust Guarantee relating to the Trust Preferred Securities of Republic New York Capital IV.(14) 27* Financial Data Schedule.
- --------------- * Filed herewith ** Previously filed. (1) Incorporated herein by reference to such exhibits filed with the Corporation's Annual Report on Form 10-K for the year ended December 31, 1993 and Current Reports on Form 8-K dated May 23, 1994, June 26, 1995 and September 24, 1997. (2) Incorporated herein by reference to such exhibit filed with the Corporation's Annual Report on Form 10-K for the year ended December 31, 1996. II-3 81 (3) Incorporated herein by reference to such exhibits filed with the Corporation's Registration Statement (No. 33-5804) filed with the Commission on May 23, 1986. (4) Incorporated herein by reference to such exhibits filed with the Corporation's Current Reports on Form 8-K dated February 4, 1987. (5) Incorporated herein by reference to such exhibits filed with the Corporation's Registration Statement (No. 33-40703) filed with the Commission on May 20, 1991. (6) Incorporated herein by reference to such exhibits filed with the Corporation's Registration Statement (No. 33-49507), Amendment No. 1, filed with the Commission on April 23, 1993. (7) Incorporated herein by reference to such exhibits filed with the Corporation's Current Reports on Form 8-K dated February 8, 1989. (8) Incorporated herein by reference to such exhibits filed with the Corporation's Registration Statement (No. 33-40703), Post-Effective Amendment No. 2, filed with the Commission on October 21, 1992. (9) Incorporated herein by reference to such exhibits filed with the Corporation's Registration Statement (No. 33-49507) filed with the Commission on April 14, 1993. (10) Incorporated herein by reference to such exhibits filed with the Corporation's Current Reports on Form 8-K dated August 6, 1992. (11) Included in Exhibit 4.10. (12) To be filed by amendment or incorporated by reference in connection with the offering of a series of Preferred Stock. (13) Included in Exhibit 4.28. (14) To be filed by amendment or incorporated by reference in connection with the offering of a series of Trust Preferred Securities. ITEM 17. UNDERTAKINGS. The undersigned Registrants hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that subparagraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the Securities offered herein, and the offering of such Securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the Securities being registered which remain unsold at the termination of the offering. The undersigned Registrants hereby further undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Registrants' annual report pursuant to II-4 82 section 13(a) or 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 Securities offered herein, and the offering of such Securities at that time shall be deemed to be the initial bona fide offering thereof. The undersigned Registrants hereby further undertakes to file an application for the purpose of determining the eligibility of the trustees to act under subsection (a) of section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrants pursuant to the provisions described under Item 15 of this registration statement, or otherwise (other than insurance), the Registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of the Registrants 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 Registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in such Act and will be governed by the final adjudication of such issue. II-5 83 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this amendment to the 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 the 29th day of December, 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 amendment to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE - ------------------------------------------ ----------------------------- --------------------- WALTER H. WEINER Director and Chairman of the December 29, 1997 - ------------------------------------------ Board (Principal Executive Walter H. Weiner Officer) KENNETH F. COOPER Executive Vice President and December 29, 1997 - ------------------------------------------ Chief Financial Officer Kenneth F. Cooper (Principal Financial and Accounting Officer) Director - ------------------------------------------ Kurt Andersen ROBERT A. COHEN Director December 29, 1997 - ------------------------------------------ Robert A. Cohen CYRIL S. DWEK Director December 29, 1997 - ------------------------------------------ Cyril S. Dwek ERNEST GINSBERG Director December 29, 1997 - ------------------------------------------ Ernest Ginsberg NATHAN HASSON Director December 29, 1997 - ------------------------------------------ Nathan Hasson PETER KIMMELMAN Director December 29, 1997 - ------------------------------------------ Peter Kimmelman RICHARD A. KRAEMER Director December 29, 1997 - ------------------------------------------ Richard A. Kraemer LEONARD LIEBERMAN Director December 29, 1997 - ------------------------------------------ Leonard Lieberman
II-6 84
SIGNATURE TITLE DATE - ------------------------------------------ ----------------------------- --------------------- WILLIAM C. MACMILLEN, JR. Director December 29, 1997 - ------------------------------------------ William C. Macmillen, Jr. PETER J. MANSBACH Director December 29, 1997 - ------------------------------------------ Peter J. Mansbach MARTIN F. MERTZ Director December 29, 1997 - ------------------------------------------ Martin F. Mertz JAMES L. MORICE Director December 29, 1997 - ------------------------------------------ James L. Morice E. DANIEL MORRIS Director December 29, 1997 - ------------------------------------------ E. Daniel Morris JANET L. NORWOOD Director December 29, 1997 - ------------------------------------------ Janet L. Norwood JOHN A. PANCETTI Director December 29, 1997 - ------------------------------------------ John A. Pancetti Director - ------------------------------------------ Vito S. Portera THOMAS F. ROBARDS Director December 29, 1997 - ------------------------------------------ Thomas F. Robards WILLIAM P. ROGERS Director December 29, 1997 - ------------------------------------------ William P. Rogers ELIAS SAAL Director December 29, 1997 - ------------------------------------------ Elias Saal DOV C. SCHLEIN Director December 29, 1997 - ------------------------------------------ Dov C. Schlein GEORGE T. WENDLER Director December 29, 1997 - ------------------------------------------ George T. Wendler PETER WHITE Director December 29, 1997 - ------------------------------------------ Peter White
II-7 85 Pursuant to the requirements of the Securities Act of 1933, each of Republic New York Capital III and Republic New York Capital IV certifies that it has reasonable grounds to believe it meets all of the requirements for filing on Form S-3 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 the State of New York on the 29th day of December, 1997. REPUBLIC NEW YORK CAPITAL III a Delaware business trust By: THOMAS F. ROBARDS ------------------------------------ Thomas F. Robards Administrative Trustee REPUBLIC NEW YORK CAPITAL IV a Delaware business trust By: THOMAS F. ROBARDS ------------------------------------ Thomas F. Robards Administrative Trustee II-8 86 INDEX TO EXHIBITS
EXHIBIT NO. EXHIBIT DESCRIPTION - ------- ------------------------------------------------------------------------------------- 1.1 Form of Underwriting Agreement 1.2 Form of Underwriting Agreement for Trust Preferred Securities 4.10 Junior Subordinated Indenture, dated as of December 15, 1997. 5.1 Opinion and consent of William F. Rosenblum, Jr. regarding the Corporation Securities. 5.2 Opinion and consent of Potter Anderson & Corroon regarding the Trust Securities. 25.2 Statement on Form T-1 of eligibility of Bankers Trust Company, as trustee under the Junior Subordinated Indenture. 27 Financial Data Schedule.
EX-1.1 2 FORM OF UNDERWRITING AGREEMENT 1 EXHIBIT 1.1 FORM OF UNDERWRITING AGREEMENT New York, New York [DATE] To the Representatives named in Schedule I hereto of the Underwriters named in Schedule II hereto Dear Sirs: Republic New York Corporation, a Maryland corporation (the "Company"), proposes to sell to the underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as representatives (the "Representatives"), (1) the principal amount of its senior debt securities, if any, identified in Schedule I hereto (the "Senior Securities"), to be issued under an Indenture dated as of May 15, 1986, as supplemented by a First Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental Indenture dated as of April 15, 1993, between the Company and Citibank, N.A. or such other entity named in Schedule I as trustee (the "Trustee") (said Indenture, as so supplemented, the "Senior Indenture"); (2) the principal amount of its subordinated debt securities, if any, identified in Schedule I hereto (the "Subordinated Securities" and together with the Senior Securities, the "Debt Securities"), to be issued under either an Indenture dated as of May 15, 1986, as supplemented by a First Supplemental Indenture dated as of May 15, 1991 and a Second Supplemental Indenture dated as of April 15, 1993 between the Company and the Trustee or such other entity as is named in Schedule I as trustee (said Indenture, as so supplemented, the "1986 Subordinated Indenture") or a separate Indenture dated as of October 15, 1992, as supplemented by a First Supplemental Indenture dated as of April 15, 1993 between the Company and the Trustee or such other entity as is named in Schedule I as trustee (said Indenture, as so supplemented, the "1992 Subordinated Indenture"), (the Senior Indenture, 1986 Subordinated Indenture and 1992 Subordinated Indenture being collectively referred to herein as the "Indentures"); (3) warrants, if any (the "Debt Warrants"), to purchase an aggregate principal amount of Debt Securities, which warrants are to be issued pursuant to a Debt Warrant Agreement (the "Debt Warrant Agreement") between the Company and a warrant agent (the "Debt Warrant Agent"), all as specified in Schedule I hereto; (4) the shares of preferred stock of the Company, if any, identified in Schedule I hereto (the "Preferred Stock"); (5) depositary receipts, if any, evidencing an interest in depositary shares (the "Depositary Shares") representing an interest in shares of Preferred Stock of the Company to be issued under a Deposit Agreement (the "Deposit Agreement") among the Company, a U.S. bank or trust company as depositary (the "Depositary"), and the holders from time to time of such depositary receipts all as indicated in Schedule I hereto; (6) warrants, if any, to purchase a number of shares of Preferred Stock (the "Preferred Stock Warrants") of the Company, which warrants are to be issued pursuant to a Preferred Stock Warrant Agreement (the "Preferred Stock Warrant Agreement") between the Company and a warrant agent (the "Preferred Stock Warrant Agent"), all as specified in Schedule I hereto; (7) shares 2 of Common Stock, par value $5.00 per share (the "Common Stock"); (8) warrants, if any, to purchase shares of Common Stock ("Common Stock Warrants") of the Company, which warrants are to be issued pursuant to a Common Stock Warrant Agreement (the "Common Stock Warrant Agreement") between the Company and a warrant agent (the "Common Stock Warrant Agent"), all as specified in Schedule I hereto; (9) warrants, if any, entitling the holder to receive the cash value of the right to purchase or sell foreign currencies or composite currencies (the "Currency Warrants"), which warrants are to be issued pursuant to a Currency Warrant Agreement (the "Currency Warrant Agreement") between the Company and a warrant agent (the "Currency Warrant Agent"), all as specified in Schedule I hereto; (10) warrants, if any, entitling the holder to receive an amount in cash determined by reference to increases or decreases in the level of a specified stock-index which may be based on one or more U.S. or foreign stocks or a combination thereof (the "Stock-Index Warrants"), which warrants are to be issued pursuant to a Stock-Index Warrant Agreement (the "Stock-Index Warrant Agreement") between the Company and a warrant agent (the "Stock-Index Warrant Agent"), all as specified in Schedule I hereto; and/or (11) warrants, if any, relating to other items or indices (the "Other Warrants"), which warrants are to be issued pursuant to an Other Warrant Agreement (the "Other Warrant Agreement" and together with each other warrant agreement contemplated herein being referred to herein collectively as the "Warrant Agreements") between the Company and a warrant agent (the "Other Warrant Agent" and together with each other warrant agent contemplated herein being referred to herein collectively as the "Warrant Agents"), all as specified in Schedule I hereto. The Debt Securities, Debt Warrants, Preferred Stock, Depositary Shares, Preferred Stock Warrants, Common Stock, Common Stock Warrants, Currency Warrants, Stock-Index Warrants and Other Warrants (all such warrants being referred to herein collectively as "Warrants") may be sold either separately or as units (the "Units") together with any of the foregoing. The Debt Securities, Debt Warrants, Preferred Stock, Depositary Shares, Preferred Stock Warrants, Common Stock, Common Stock Warrants, Currency Warrants, Stock-Index Warrants, Other Warrants and Units described in Schedule I hereto shall collectively be referred to herein as the "Purchased Securities". The Company may also grant to the Underwriters an option to purchase up to such additional number of Purchased Securities as is specified in Schedule I hereto (the "Option Securities"). The Purchased Securities and Option Securities shall be collectively referred to herein as the "Securities". If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representatives", as used herein, shall each be deemed to refer to such firm or firms. 1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter that: (a) The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (the file number of which is set forth in Schedule I hereto), which has become effective, for the registration under the Securities Act of 1933, as amended (the "Act"), of the Securities. If more than one registration statement is referred to in Schedule I hereto, then the term "registration statement", as used herein, shall be deemed to refer to all such registration statements. The Company proposes to file with the Commission pursuant to Rule 424(b) under the Act a supplement to the form of prospectus included in such registration statement relating to the Securities and the plan of distribution thereof and has previously advised you of all further information (financial and other) with respect to the Company to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date of this Agreement, is hereinafter called the "Registration Statement"; such prospectus in the form in which it appears in the Registration Statement is hereinafter called the "Basic Prospectus"; and such supplemented form of prospectus, in the form in which it shall be filed with the Commission pursuant to Rule 424(b) (including the Basic Prospectus as so supplemented) is hereinafter called the "Final Prospectus". Any 2 3 preliminary form of the Final Prospectus which has heretofore been filed pursuant to Rule 424(b) is hereinafter called the "Preliminary Final Prospectus". Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before the date of this Agreement, or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. (b) On the effective date of the Registration Statement, as of the date hereof, when the Final Prospectus is first filed pursuant to Rule 424(b) under the Act, when, prior to the Closing Date (as hereinafter defined), any amendment to the Registration Statement becomes effective (including the filing of any document incorporated by reference in the Registration Statement), when any supplement to the Final Prospectus is filed with the Commission and at the applicable Closing Date, (i) the Registration Statement, as amended as of any such time, any Final Prospectus, as amended or supplemented as of any such time, and the Indenture will comply in all material respects with the applicable requirements of the Act, the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990 (the "Trust Indenture Act"), and the Exchange Act and the respective rules thereunder and (ii) neither the Registration Statement, as amended as of any such time, nor any Final Prospectus, as amended or supplemented as of any such time, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee in the case of an issuance of Debt Securities or Debt Warrants or (ii) any information contained in or omitted from the Registration Statement or the Final Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation of the Registration Statement and the Final Prospectus. 2. Purchase and Sale. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the respective purchase prices and upon the terms and conditions set forth in Schedule I hereto the principal amount or number of Purchased Securities set forth opposite such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto provides for the sale of Purchased Securities pursuant to delayed delivery arrangements, the respective principal amount or number of such Purchased Securities to be purchased by the Underwriters, shall be as set forth in Schedule II hereto less the respective amounts or number of Contract Securities determined as provided below. Purchased Securities to be purchased by the Underwriters are herein sometimes called the "Underwriters' Securities" and Purchased Securities to be purchased pursuant to delayed delivery contracts ("Delayed Delivery Contracts") as hereinafter provided are herein called "Contract Securities". (b) If so provided in Schedule I hereto, the Underwriters are authorized to solicit offers to 3 4 purchase Purchased Securities from the Company pursuant to Delayed Delivery Contracts, substantially in the form of Schedule III hereto but with such changes therein as the Company may authorize or approve. The Underwriters will endeavor to make such arrangements and, as compensation therefor, the Company will pay to the Representatives, for the account of the Underwriters, on the applicable Closing Date, an amount as follows: (i) in the case of Debt Securities, Debt Warrants and Units consisting of Debt Securities and Debt Warrants, an amount equal to the percentage set forth in Schedule II hereto of the principal amount of the Debt Securities or number of Debt Warrants for which such Delayed Delivery Contracts are made, (ii) in the case of Preferred Stock, Depositary Shares and Units consisting of Preferred Stock and any other Securities, an amount equal to the percentage set forth in Schedule II hereto of the aggregate liquidation preference of shares of Preferred Stock, including shares represented by such Depositary Shares, for which Delayed Delivery Contracts are made, (iii) in the case of all other Securities, including Common Stock, an amount as set forth in Schedule II hereto of Securities for which such Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions. The Company will enter into Delayed Delivery Contracts in all cases where sales of Contract Securities arranged by the Underwriters have been approved by the Company but, except as the Company may otherwise agree, each such Delayed Delivery Contract must (x) in the case of Debt Securities, Debt Warrants or Units consisting of Debt Securities and Debt Warrants, be for not less than the minimum principal amount set forth in Schedule I hereto and the aggregate principal amount of Contract Securities may not exceed the maximum aggregate principal amount set forth in Schedule I hereto, (y) in the case of Preferred Stock, Depositary Shares or Units consisting of Preferred Stock and any other Securities, be for not less than the minimum number of shares of Preferred Stock set forth in Schedule I hereto and the aggregate number of shares of Preferred Stock, including shares represented by such Depositary Shares, of Contract Securities may not exceed the maximum aggregate number of shares of Preferred Stock set forth in Schedule I hereto and (z) in the case of the Common Stock and all other Securities, be for not less than the minimum number of each of such Common Stock or other Securities, as the case may be, respectively set forth in Schedule II hereto and the aggregate number of each of such Common Stock or other Securities, as the case may be, constituting Contract Securities may not exceed the maximum number of each of such Common Stock or other Securities, as the case may be, respectively set forth in Schedule II hereto. The Underwriters will not have any responsibility in respect of the validity or performance of Delayed Delivery Contracts. The principal amount or number of Purchased Securities to be purchased by each Underwriter as set forth in Schedule II hereto shall be reduced by an amount which shall bear the same proportion to the total principal amount or number of Contract Securities as the principal amount or number set forth opposite the name of such Underwriter bears to the aggregate principal amount or number of such Purchased Securities set forth in Schedule II hereto, except to the extent that you determine that such reduction shall be otherwise than in such proportion and so advise the Company in writing; provided, however, that the total principal amount or number of the Purchased Securities to be purchased by all Underwriters shall be the aggregate principal amount or number set forth in Schedule II hereto less the aggregate principal amount or number of Contract Securities. The Company will advise the Representatives not later than the business day prior to the applicable Closing Date of the aggregate principal amount or number, as the case may be, of the Contract Securities. 3. Delivery and Payment. (a) Delivery of the Underwriters' Securities shall be made at the office of the Company or at the office of The Depository Trust Company ("DTC") if the Underwriters' Securities are issued in book-entry form, and payment for such Securities shall be made at the office of the Company on the date and at the time specified in Schedule I hereto (or such later date not later than five business days 4 5 after such specified date as the Representatives shall designate), which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 8 hereof (such date and time of delivery and payment for the Underwriters' Securities being herein referred to in the case of Purchased Securities as the "Purchased Securities Closing Date", in the case of Option Securities as the "Option Securities Closing Date" and each such date being referred to herein as a "Closing Date"). Delivery of the Underwriters' Securities (which, in the case of Depositary Shares, shall be deemed to occur upon confirmation of delivery of the applicable number of shares of Preferred Stock to the Depositary against delivery of the depositary receipts evidencing the Depositary Shares in respect thereof) shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof by wire transfer of immediately available funds to such account or accounts as the Company shall specify prior to the Closing Date or by such other means as are specified in Schedule I hereto. (b) If specified in Schedule I hereto, the several Underwriters will be compensated for their respective commitments and obligations by separate payment to the Representatives for the respective accounts of such Underwriters. Such payment by the Company to the Underwriters shall be made simultaneously with the payment by the Underwriters to the Company of the purchase price of the Underwriters' Securities as specified herein. Any separate payment of compensation by the Company to the Underwriters shall be made by wire transfer of immediately available funds to such account or accounts as the Representatives shall specify prior to the Closing Date or by such other means as are specified in Schedule I hereto. (c) Unless otherwise specified in Schedule I, payment shall be made in immediately available funds by fed wire if the Underwriters' Securities are issued in book-entry form. Certificates for the Underwriters' Securities shall be registered in such names and in such denominations as the Representatives may request not less than three full business days in advance of the Closing Date, provided that, if the Underwriters' Securities are in book-entry form, the registration thereof, including the determination of the denominations thereof, shall be in accordance with the regulations of DTC. (d) The Company agrees to have the Underwriters' Securities available for inspection, checking or packaging by the Representatives in New York, New York, not later than 1:00 P.M., New York City time, on the business day prior to the applicable Closing Date, unless the Underwriters' Securities are in book-entry form. 4. Agreements. The Company agrees with the several Underwriters that: (a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus to be filed with the Commission pursuant to and in accordance with the applicable subparagraph of Rule 424(b). The Company will promptly advise the Representatives (i) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b), (ii) when any amendment to the Registration Statement relating to the Securities shall have become effective, (iii) of any request by the Commission for any amendment of the Registration Statement or amendment of or supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension 5 6 of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for any such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (b) If, at any time within six months after the date hereof, any event occurs as a result of which the Final Prospectus as then amended or supplemented 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 if it shall be necessary to amend or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance, and in case any Underwriter is required by law to deliver a prospectus in connection with the sales of any of such Securities at any time six months or more after the date of this Agreement, upon the request of the Representatives, but at the expense of such Underwriter, prepare and deliver to such Underwriter as many copies as the Representatives may request of an amended or supplemented prospectus complying with Section 10(a)(3) of the Act. (c) As soon as practicable, the Company will make generally available to its security holders and to the Representatives a consolidated earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (d) Except as set forth in Section 4(b) above, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to the Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering except as otherwise set forth in this Agreement. The Underwriters will pay all of their own costs and expenses, including the cost of printing any Agreement Among Underwriters, the fees and disbursements of their counsel, transfer taxes on resale of the Securities by them and any advertising expenses connected with any offers that they may make. (e) The Company will use its best efforts to qualify the Securities and any Debt Securities, Common Stock or Preferred Stock which may be issuable pursuant to the exercise, conversion or exchange, as the case may be, of Securities offered by the Company, for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation to do business or to file a general consent to service of process in any jurisdiction and provided, further, that the expense of maintaining any such qualification more than one year from the date of this Agreement with respect to the Securities shall be at the expense of the Underwriters. (f) The Company will arrange for the listing of (i) any Common Stock, Preferred Stock or Depositary Shares constituting Securities hereunder upon notice of issuance on the New York Stock Exchange, Inc. or such other national securities exchange as may be designated in Schedule I hereto, (ii) any Currency Warrants and, to the extent required by applicable law and/or agreed to with the Underwriters, any Stock-Index Warrants, Other Warrants, Preferred Stock Warrants and Common Stock Warrants upon notice of issuance on the New York Stock Exchange, Inc. or such other national securities exchange as may be designated in Schedule I hereto and (iii) any Common Stock or Preferred Stock issuable upon conversion or exercise of any of the Securities on the New York Stock Exchange, Inc. or such other national 6 7 securities exchanges on which the Company's outstanding Common Stock or Preferred Stock, as the case may be, are then listed. (g) If specified in Schedule I hereto, during the period beginning from the date hereof and continuing to and including the later of the Purchased Securities Closing Date or the Option Securities Closing Date, the Company will not, without the Underwriters' prior written consent, offer, sell, contract to sell or otherwise dispose of (i) any shares of capital stock of the Company (other than the Preferred Stock and Common Stock, issued hereunder or exchangeable upon conversion or exchange of the same) and (ii) any currency, stock-index or other warrants which are substantially similar to the Currency Warrants, Stock-Index Warrants or Other Warrants, respectively, except, in any such case, pursuant to arrangements of which the Representatives have been advised by the Company prior to the date hereof and which arrangements are specified in Schedule I hereto. (h) If necessary or otherwise required, the Company will comply with all of the provisions of Section 517.075 of the Florida Statutes, and all rules and regulations promulgated thereunder, relating to issuers doing business in Cuba. 5. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwriters' Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the applicable Closing Date (including the filing of any document incorporated by reference therein) and as of any such Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company, in all material respects, of its obligations hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the Commission; and the Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b) not later than 5:30 P.M., New York City time, on the second business day following the date hereof. (b) The Company shall have furnished to the Representatives the opinion of William F. Rosenblum, Jr., Esq., Senior Vice President, Deputy General Counsel and Corporate Secretary for the Company, dated such Closing Date, with such specificity as is necessary to reflect particularly the Securities purchased on such Closing Date to the effect that: (i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Maryland and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, and has the corporate power and authority to own its properties and conduct its business as described in the Final Prospectus; Republic National Bank of New York (the "Bank") is a duly organized and validly existing national banking association under the laws of the United States, continues to hold a valid certificate to do business as such and has full power and authority to conduct its business as such as described in the Final Prospectus; and, except as set forth in the Registration Statement and the Final Prospectus, each of the Company and the Bank is in all material respects in compliance with all laws, rules, regulations, directives and published interpretations issued or administered by, all conditions imposed in writing by and all agreements entered into with, any 7 8 bank regulatory agency, authority or body having jurisdiction over the Company or the Bank or any of their respective assets, operations or businesses; each of the Company and the Bank holds all material licenses, certificates and permits from governmental authorities necessary for the conduct of its business as described in the Final Prospectus; and other than the Bank there is no significant subsidiary of the Company, as that term is defined in Rule 1-02(v) of Regulation S-X, and there are no other subsidiaries of the Company which individually, or in the aggregate, own or lease property or conduct business which is material to the properties or business of the Company and its subsidiaries taken as a whole; (ii) the Bank is duly authorized, and the Company is duly qualified as a foreign corporation, to do business and is in good standing in all jurisdictions in which such authorization or qualification is required and in which the failure to be so authorized or to qualify, as the case may be, could, in the aggregate, have any material adverse effect upon the business, condition or properties of each of the Company or the Bank and their respective subsidiaries taken as a whole. (iii) all the outstanding capital stock of the Bank is duly authorized, validly issued, fully paid and (except as provided in 12 U.S.C. ss. 55, as amended) nonassessable and owned by the Company free and clear of all liens, encumbrances and security interests; (iv) neither the issue nor sale of the Purchased Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof or of the Purchased Securities being delivered at such Closing Date, will conflict with, result in a breach of or constitute a default under, the terms of the charter or by-laws of the Company or the Bank or any indenture or other agreement or instrument to which the Company or the Bank is a party or under which any of them or their property is bound, or any order or regulation known to such counsel to be applicable to the Company or the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Bank or Manhattan or any other Significant Subsidiary or any of their respective material properties or operations; and (v) such counsel does not know of any pending or threatened action, suit or proceeding before any court or governmental agency, authority or body, to which the Company or the Bank is or may be a party of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, or of any franchises, contracts or other documents of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required. (vi) the Securities conform to the description thereof contained in the Final Prospectus; (vii) In the case of an offering of Debt Securities or Debt Warrants, each of the applicable Indenture and Debt Warrant Agreement, if any, has been duly authorized, executed and delivered by the Company; the applicable Indenture has been duly qualified under the Trust Indenture Act; and, assuming due authorization, execution and delivery by the Trustee and/or Debt Warrant Agent, each of the applicable Indenture and Debt Warrant Agreement, if any, constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its respective terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect and by 8 9 general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law); the Debt Securities and Debt Warrants have been duly and validly authorized and, when executed by the proper officers of the Company, countersigned by the Debt Warrant Agent under the Debt Warrant Agreement and authenticated in accordance with the provisions of the applicable Indenture and in all cases delivered pursuant to the Debt Warrant Agreement, in the case of Debt Warrants, and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of all of the Underwriters' Securities, or by the purchasers thereof pursuant to the Delayed Delivery Contracts, in the case of any Contract Securities, will in each case constitute a legal, valid and binding obligation of the Company, be convertible for Preferred Stock or Common Stock of the Company in accordance with their terms as set forth in the Final Prospectus and will be entitled to the benefits of the applicable Indenture; if the Debt Securities or Debt Warrants are convertible into Common Stock or Preferred Stock of the Company, the shares of Common Stock or Preferred Stock issuable upon such conversion will have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable; the outstanding shares of such Common Stock or Preferred Stock will have been duly authorized and issued, will be fully paid and nonassessable and will conform to the description thereof contained in the Final Prospectus; and the stockholders of the Company have no preemptive rights with respect to any of such shares of Preferred Stock or Common Stock issuable upon such conversion. (viii) In the case of an offering of Preferred Stock, including any shares of Preferred Stock constituting Option Securities, the Company has authorized capital stock as set forth in the Final Prospectus; the shares of Preferred Stock being delivered at such Closing Date have been duly authorized, validly issued and are fully paid and nonassessable; the Contract Securities, when issued, delivered and sold pursuant to the Delayed Delivery Contracts, will be duly issued, fully paid and nonassessable; the shares of Preferred Stock being delivered at such Closing Date conform, and the Contract Securities, when so issued, delivered and sold, will conform, to the descriptions thereof contained in the Final Prospectus; and the stockholders of the Company have no preemptive rights with respect to any of such shares of Preferred Stock. If the shares of Preferred Stock being delivered at such Closing Date are convertible or exchangeable into Common Stock or other Securities, such shares of Preferred Stock are, and the Contract Securities, when so issued, delivered and sold, will be, convertible or exchangeable into Common Stock or other Securities of the Company in accordance with their terms; the shares of such Common Stock or other Securities initially issuable upon conversion or exchange of such shares of Preferred Stock will have been duly authorized and reserved for issuance upon such conversion or exchange and, when issued upon such conversion or exchange, will be duly issued, fully paid and nonassessable; andsuch shares of Common Stock conform in all material respects to the description thereof contained in the Final Prospectus; (ix) In the case of an offering of Common Stock, including any shares of Common Stock constituting Option Securities, the Company has authorized capital stock as set forth in the Final Prospectus; the shares of Common Stock being delivered at such Closing Date have been duly authorized, validly issued and are fully paid and nonassessable; the Contract Securities, when issued, delivered and sold pursuant to the Delayed Delivery Contracts, will be duly issued, fully paid and nonassessable; the shares of Common Stock being delivered at such Closing Date conform, and the Contract Securities, when so issued, delivered and sold, will conform, to the descriptions thereof contained in the Final Prospectus; and the stockholders of the Company have no preemptive rights with respect to any of such shares of Common Stock. 9 10 (x) In the case of an offering of Depositary Shares, including any Depositary Shares constituting Option Securities, the Company has authorized capital stock as set forth in the Final Prospectus; the shares of Preferred Stock being delivered to the Depositary and represented by the Depositary Shares at such Closing Date have been duly authorized; the shares of Preferred Stock delivered to the Depositary and represented by Depositary Shares at such Closing Date, assuming that such Depositary Shares have been issued and delivered to the Depositary against delivery of depositary receipts evidencing the applicable Depositary Shares to the Underwriters, have been validly issued and are fully paid and nonassessable; the Contract Securities, when issued, delivered and sold pursuant to the Delayed Delivery Contracts, will be duly issued, fully paid and nonassessable; the Depositary Shares being delivered at such Closing Date conform, and the Contract Securities, when so issued, delivered and sold, will conform, to the descriptions thereof contained in the Final Prospectus; and the stockholders of the Company have no preemptive rights with respect to any of such Depositary Shares or the shares of Preferred Stock represented thereby. If shares of Preferred Stock represented by Depositary Shares being delivered at such Closing Date are convertible or exchangeable into Common Stock or other Securities, such shares of Preferred Stock are, and the shares of Preferred Stock represented by Depositary Shares constituting Contract Securities, when so issued, delivered and sold, will be, convertible or exchangeable into Common Stock or other Securities of the Company in accordance with their terms; the shares of Common Stock initially issuable upon conversion or exchangeable of shares of Preferred Stock represented by Depositary Shares will have been duly authorized and reserved for issuance upon such conversion or exchange and, when issued upon such conversion or exchange, will be duly issued, fully paid and nonassessable; and such shares of such Common conform in all material respects to the description thereof contained in the Final Prospectus; (xi) in the case of an offering of Depositary Shares, assuming due authorization, execution and delivery of the Deposit Agreement by the Depositary, the Deposit Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company enforceable in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect and by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law); and the depositary receipts when executed and delivered pursuant to the Deposit Agreement upon deposit of the Preferred Stock thereunder, will be validly issued and will entitle the holders thereof to the rights in respect of the applicable Depositary Shares specified therein and in the Deposit Agreement; (xii) in the case of an offering of Currency Warrants, Stock-Index Warrants, Other Warrants, Preferred Stock Warrants and Common Stock Warrants, the applicable Warrant Agreement has been duly authorized, executed and delivered by the Company; and, assuming due authorization, execution and delivery by the applicable Warrant Agent, the applicable Warrant Agreement constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect and by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law); the applicable Warrants have been duly and validly authorized 10 11 and, when executed by the proper officers of the Company, countersigned by the applicable Warrant Agent under the applicable Warrant Agreement and in all cases delivered pursuant to the applicable Warrant Agreement and delivered to and paid for by the Underwriters pursuant to this Agreement (or by the purchasers thereof pursuant to the Delayed Delivery Contracts in the case of any Contract Securities) will in each case constitute a legal, valid and binding obligation of the Company and will be entitled to the benefits of the applicable Warrant Agreement; and in the case of Preferred Stock Warrants and Common Stock Warrants, the shares of Preferred Stock or Common Stock initially issuable upon the exercise thereof have been duly and validly authorized and reserved for issuance upon such exercise and such shares, when issued upon such exercise in accordance with the terms of the respective Warrant Agreement and at the prices therein provided for, will be duly authorized, validly issued, fully paid and nonassessable; (xiii) if the Securities being delivered on such Closing Date are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with such stock exchange and such counsel has no reason to believe that such Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution; (xiv) the Registration Statement and any amendments thereto have become effective under the Act; to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement, the Final Prospectus as amended or supplemented on the Closing Date (except for the financial statements and other financial and statistical data contained therein or omitted therefrom and, in the case of an offering of Debt Securities or Debt Warrants, the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee as to all of which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Act and the Exchange Act and the respective rules thereunder, and such counsel has no reason to believe that the Registration Statement, as amended (except for the financial statements and other financial or statistical data contained or incorporated therein or omitted therefrom and, in the case of an offering of Debt Securities or Debt Warrants, the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee as to all of which such counsel need express no opinion) at the time it became effective and at the date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus, as amended or supplemented (except for the financial statements and other financial or statistical data contained or incorporated therein or omitted therefrom and, in the case of an offering of Debt Securities or Debt Warrants, the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee as to all of which such counsel need express no opinion) as of the date of its issue and the Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (xv) this Agreement and the Delayed Delivery Contracts, if any, have been duly authorized, executed and delivered by the Company; and (xvi) no consent, approval, authorization or order of any court or governmental agency, authority or body is required for the consummation of the transactions contemplated 11 12 herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of any of the Purchased Securities being delivered at such Closing Date by the Underwriters and such other approvals (specified in such opinion) as have been obtained and are in full force and effect. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States, to the extent they deem proper and specify in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Such opinion may be made subject to the qualifications that the enforceability of the terms of the applicable Indenture, Warrant Agreement and Securities being delivered at such Closing Date may be limited by applicable bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in a proceeding in equity or at law. (c) The Representatives shall have received the opinion of counsel for the Underwriters (which shall be named in Schedule I), dated such Closing Date, stating that such counsel has no reason to believe that the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom and, with respect to an offering of Debt Securities or Debt Warrants, the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee as to all of which such counsel need express no opinion), at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom and, with respect to an offering of Debt Securities or Debt Warrants, and the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee as to all of which such counsel need express no opinion) includes any untrue statement of any material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel shall also render an opinion with respect to the issuance and sale of the Securities and other related matters as the Underwriters may reasonably require, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass on such matters. (d) The Company shall have furnished to the Representatives a certificate signed by a senior officer of the Company in form reasonably satisfactory to them that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of such Closing Date with the same effect as if made on the Closing Date and the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to such Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated in the Final Prospectus, there has been no material adverse change in the financial or business condition or earnings of the Company and its subsidiaries, considered as a whole, whether or 12 13 not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus. (e) At such Closing Date, KPMG Peat Marwick shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of such Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Registration Statement and the Final Prospectus and reported on by them comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the carrying out of certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors, audit and examining committees of the Company and the Bank, and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements in or incorporated in the Final Prospectus, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated in the Registration Statement and the Final Prospectus do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; or that said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Final Prospectus, there were at a specified date not more than five business days prior to the date of such letter, any changes in the capital stock (other than issuances or cancellations under the Company's Long-Term Incentive Stock Plan, [Restricted Stock or Restricted Stock Election Plans and exercises of options under the Company's Stock Option Plans]) or long-term indebtedness (other than scheduled repayments of such debt) or any decrease in stockholders' equity of the Company and its subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Final Prospectus, except for changes or decreases which the Registration Statement and the Final Prospectus disclose have occurred or may occur or which are described in such letter, or, for the period from the date of the most recent financial statements included or incorporated in the Registration Statement and the Final Prospectus to the end of the most recent 13 14 period for which the Company has prepared internal financial statements, there were any decreases as compared with the corresponding period in the prior fiscal year in the total amounts of net interest income or income before income taxes of the Company and its subsidiaries or in the total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases which the Registration Statement and the Final Prospectus disclose have occurred or may occur or which are described in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Final Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 6 and 7 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Final Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and (iv) if pro forma financial statements are included or incorporated in the Registration Statement and Final Prospectus, on the basis of a reading of the unaudited pro forma financial statements, carrying out certain specified procedures, inquiries of certain officials of the Company and the acquired company who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. References to the Registration Statement and the Final Prospectus in this paragraph (f) are to such documents as amended and supplemented at the date of the letter. (f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been (i) any change or decrease specified in the letter referred to in paragraph e(2) of this Section 5 or (ii) any change in or affecting the financial or business condition or earnings of the Company and its subsidiaries considered as a whole the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives, so material or adverse as to make it impractical or inadvisable to proceed with the 14 15 offering or the delivery of the Purchased Securities as contemplated by the Registration Statement and the Final Prospectus. (g) Subsequent to the execution of this Agreement, there shall not have been any decrease in the ratings by Moody's Investors Service, Inc. or Standard & Poor's Corporation of (i) in the case of an offering of Debt Securities or Debt Warrants, any of the Company's senior debt securities (if Securities include Senior Securities) or subordinated debt securities (if Securities include Subordinated Securities) or (ii) in the case of an offering of Preferred Stock, Depository Shares or Preferred Stock Warrants, Preferred Stock. (h) In the case of an offering of Debt Securities, Debt Warrants or Units consisting of Debt Securities and Debt Warrants, the Company shall have furnished to the Representatives such further certificates and opinions of counsel as the Representatives may reasonably request relating to the Trustee, to the authorization, execution and delivery of the applicable Indenture by the Trustee and the validity and enforceability of the applicable Indenture. (i) If any of the Securities are to be listed on the New York Stock Exchange, Inc. or any other national stock exchange, such Securities shall have been duly listed, subject to notice of issuance, on such stock exchange. (j) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by Underwriters have been approved by the Company. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, such Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. 6. Reimbursement of Underwriters' Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 5 hereof is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities. 7. Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person who controls any Underwriter 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 for the registration of the Securities as originally filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the Final 15 16 Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that (i) the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation thereof, and (ii) such indemnity with respect to the Basic Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) from whom the person asserting any such loss, claim, damage or liability purchased the Securities which are the subject thereof if such person did not receive a copy of the Final Prospectus (or the Final Prospectus as amended or supplemented) excluding documents incorporated therein by reference at or prior to the confirmation of the sale of such Securities to such person and the untrue statement or omission of a material fact contained in the Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus as amended or supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 7 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 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 7. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel), approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under such paragraph (a) who are parties to such action, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable 16 17 time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). (d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) of this Section 7 is due in accordance with its terms but is for any reason held by a court to be unavailable from the Company on grounds of policy or otherwise, the Company and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which the Company and one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount bears to the sum of such discount and purchase price of the Securities specified in Schedule I hereto and the Company is responsible for the balance; provided, however, that (i) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount applicable to the Securities purchased by such Underwriter hereunder and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of the Act shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clause (ii) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d). 8. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount or number of Securities set forth opposite their names in Schedule II hereto bears to the aggregate amount or total number of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount or total number of the Securities which the defaulting Underwriter or Underwriters failed to purchase shall exceed 10% of the aggregate amount or total number of the Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement (or, with respect to an Option Securities Closing Date, the obligation of the Underwriters to purchase and of the Company to sell the Option Securities) will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 8, the applicable Closing Date shall be postponed for such period, not exceeding seven days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting 17 18 Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder. The respective commitments of the several Underwriters for the purposes of this Section shall be determined without regard to the reduction in the respective Underwriters' obligations to purchase the amount or number of Securities set forth opposite their names in Schedule II hereto as a result of Delayed Delivery Contracts entered into by the Company. 9. Termination. This Agreement shall be subject to termination prior to delivery of and payment for Securities at the applicable Closing Date, in the absolute discretion of the Representatives, by notice given to the Company or in the absolute discretion of the Company, by notice given to the Representatives, if prior to such time (a) there has been any material adverse change in the financial or business condition or earnings of the Company and its subsidiaries considered as one enterprise, (b) on or after the date hereof, there has been an outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of the Representatives, impracticable to market such Securities, or in the reasonable judgment of the Company, impracticable to issue such Securities, (c) trading in any securities of the Bank or the Company has been suspended by the Commission or a national securities exchange, or trading generally on the New York Stock Exchange Inc. has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, or a banking moratorium has been declared by either federal or New York authorities, (d) there shall have occurred a downgrading in the rating assigned to any of the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization" (as defined by the Commission for purposes of Rule 436(g) under the Act), or (e) any such statistical rating organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities or preferred stock which, in the professional judgment of the Representatives, would have, with respect to the purchase of the Securities, a material adverse effect on the price and/or value of the Securities. 10. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities the applicable Closing Date. The provisions of Section 6 and 7 hereof shall survive the termination or cancellation of this Agreement. 11. Notice. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered, telegraphed or telefaxed and confirmed to them, at the address specified in Schedule I hereto; or, if sent to the Company, will be mailed, delivered, telegraphed or telefaxed and confirmed to it at 452 Fifth Avenue, New York, New York 10018, attention of William F. Rosenblum, Jr., Esq., Senior Vice President, Deputy General Counsel and Corporate Secretary. 12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder. 13. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. 18 19 Very truly yours, Republic New York Corporation By: Executive Vice President The foregoing Agreement is hereby confirmed and accepted as of the date specified in Schedule I hereto. [UNDERWRITER] By: ___________________ For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. 19 20 Schedule I Common Stock Warrants Number of Common Stock Warrants to be issued: Warrant Agreement: Form of Common Stock Warrants: [Registered] [Bearer] Issuable jointly with other Securities: (Yes) [No] [Number of Common Stock Warrants issued with each _________ amount or $____________ principal amount of other Securities] [Detachable Date:] Date from which Common Stock Warrants are exercisable: Date on which Common Stock Warrants expire: Exercise price(s) of Common Stock Warrants: Public offering price: Purchase price: Principal Amount of Common Stock purchasable upon exercise of one Warrant: Names and addresses of Representatives: Designated Representatives: Address for Notices, etc. Other Provisions of or Amendments to the Underwriting Agreement: Purchased Securities Closing Date, Time and Location: Delayed Delivery Arrangements: Fee: Minimum principal amount of each contract: Maximum aggregate principal amount of all contracts: 18 21 Schedule I Common Stock Underwriting Agreement dated Registration Statement No. 333- Representative(s): Underwriters' Counsel: Designation, Purchase Price and Description of Common Stock: Designation: Par value per share: Number of shares: Purchase price per share (include accrued dividends, if any): Other provisions: Over-allotment option: Other Provisions of or Amendments to Underwriting Agreement: Purchased Securities Closing Date, Time and Location: Delayed Delivery Arrangements: Modification of items to be covered by the letter from KPMG Peat Marwick delivered pursuant to Section 5(f) at the Closing Date: Address to which communications to the Representative(s) are to be mailed, delivered, telegraphed or telefaxed and confirmed pursuant to Section 11: 19 22 Schedule I Currency Warrants Title of Currency Warrants: [Call] [Put] Warrants Number of Currency Warrants to be issued: Base Currency: Warrant Agreement: Warrant Agent: Form of Currency Warrants: [Registered] [Bearer] [Book-entry form, represented by single global Currency Warrant Certificate] Issuable jointly with other Securities: [Yes] [No] [Number of Currency Warrants issued with each amount or $_______ principal amount of other Securities] [Detachable Date:] Date from which Currency Warrants are exercisable: Date on which Currency Warrants expire: Strike Price of Currency Warrants: Formula for Determining Cash Settlement Value: Automatic Exercise: Minimum Number of Currency Warrants which can be Exercised: Listing: Public Offering price: Purchase price: Names and addresses of Representatives: Designated Representatives: Address for Notices, etc.: Time of Delivery: Closing Location: 20 23 Schedule I Debt Securities/ Junior Subordinated Debt Securities/ Debt Warrants Underwriting Agreement dated Registration Statement No. 333- Representatives: Underwriters' Counsel: Address: Trustee: Title, Purchase Price and Description of Debt Securities: Title: Principal amount: Interest rate: Interest payable: Commencing: Date of maturity: Public offering price: Purchase price: Form of payment: Form of Securities: Redemption provisions: Sinking fund requirements: Lockup provisions: Convertibility into other Securities: Exchangeability into other Securities: Other provisions: Other Provisions of or Amendments to Underwriting Agreement: 21 24 Description of Debt Warrants: Title of Debt Warrant Agreement: Debt Warrant Agent: Debt Warrant exercise price and currency: Principal amount and currency of Debt Warrant: Securities issuable upon exercise of one Debt Warrant: Date after which Debt Securities may be exercised: Expiration date: Detachable date (if applicable): Description of Debt Warrant Securities: Title: Trustee: Principal amount and currency: Purchase price and currency: Sinking fund provisions: Redemption provisions: Other provisions: Purchased Securities Closing Date and Time: Delayed Delivery Arrangement: Fee: Minimum principal amount of each contract: Maximum aggregate principal amount of all contracts: Statements constituting information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in Section 7: Modification of items to be covered by the letter from KPMG Peat Marwick delivered pursuant to Section 5(f) at the Closing Date: 22 25 Address to which communications to the Representatives are to be mailed, delivered, telegraphed or telefaxed and confirmed pursuant to Section 11; 23 26 Schedule I Depositary Shares Representing Preferred Stock Underwriting Agreement Registration Statement No. 333- Representative(s): Underwriters' Counsel: Depositary: Designation, Purchase Price and Description of Depositary Shares Representing Preferred Stock: Designation: Proportionate liquidation preference of each Depositary Share: Number of Depositary Shares: Purchase price per Depositary Share (plus accrued dividends, if any): Other provisions: Over-allotment option: Other Provisions of or Amendments to Underwriting Agreement: Purchased Securities Closing Date, Time and Location: Delayed Delivery Arrangements: Fee: Minimum principal amount of each contract: Maximum aggregate principal amount of all contracts: Statements constituting information furnished in writing by or on behalf of the several Underwriters through the Representatives for inclusion in the documents referred to in Section 7: Modification of items to be covered by the letter from KPMG Peat Marwick delivered pursuant to Section 5(f) at the Closing Date: Address to which communications to the Representative(s) are to be mailed, delivered, telegraphed or telefaxed and confirmed pursuant to Section 11: 24 27 Schedule I Other Warrants Title of Other Warrants:[Other [Call] [Put] Warrants] Number of Other Warrants to be issued: Stock Index: Warrant Agreement: Warrant Agent: Form of Other Warrants: [Registered] [Bearer] [Book-entry form, represented by single global Other Warrant Certificate] Issuable jointly with other Securities: [Yes] [No] [Number of Other Warrants issued with each amount or $______ principal amount of other Securities] [Detachable Date:] Date from which Other Warrants are exercisable: Date on which Other Warrants expire: Exercise Price of Other Warrants: Formula for Determining Other Cash Settlement Value: Automatic Exercise: Minimum/Maximum number of Other Warrants which can be Exercised: Listing: Public Offering price: Purchase price: Time of Delivery: Closing Location: Funds in which Underwriters to make payment: 25 28 Delayed Delivery: [None] [Underwriters' commission shall be ___% of the principal amount of Designated Securities for which Delayed Delivery Contracts have been entered into and the check given in payment of such commission shall be drawn to the order of ________________] [Maximum aggregate principal amount of Designated Securities to be offered and sold pursuant to Delayed Delivery Contracts: [$]___________________] [Minimum principal amount of each Delayed Delivery Contract: [$]________________] Names and addresses of Representatives: Designated Representatives: Address for Notices, etc.: - ---------- * A description of particular tax, accounting or other unusual features of the Securities should be set forth, or referenced to an attached and accompanying description, if necessary to the parties' understanding of the transaction contemplated. Such a description might appropriately be in the form in which such features will be described in the Prospectus, as supplemented, for the offering. Any additional terms and conditions appropriate to an offering of Securities denominated or payable in or indexed to a currency, currencies, currency unit or composite currency other than United States dollars should also be set forth. 26 29 Units Title and principal amount of Debt Securities or title and number of shares of Preferred Stock and title and number of Warrants included in one Unit: Purchase Price and currency: Detachable Date: Other provisions: 27 30 Schedule I Preferred Stock Warrants Number of Preferred Stock Warrants to be issued: Warrant Agreement: Form of Preferred Stock Warrants: [Registered] [Bearer] Issuable jointly with other Securities: [Yes] [No] [Number of Preferred Stock Warrants issued with each _________ amount or $_______________ principal amount of other Securities] [Detachable Date:] Date from which Preferred Stock Warrants are exercisable: Date on which Preferred Stock Warrants expire: Exercise price(s) of Preferred Stock Warrants: Public offering price: Purchase price: Title and terms of Preferred Stock: Principal Amount of Preferred Stock purchasable upon exercise of one Warrant: Other Provisions of or Amendments to the Underwriting Agreement: Purchased Securities Closing Date, Time and Location: Delayed Delivery Arrangements: Names and addresses of Representatives: Designated Representatives: Address for Notices, etc. 28 31 Schedule I Preferred Stock Underwriting Agreement dated Registration Statement No. 333- Representative(s): Underwriters' Counsel: Designation, Purchase Price and Description of Preferred Stock: Designation: Liquidation preference per share: Number of shares: Purchase price per share (include accrued dividends, if any) Other provisions: Over-allotment option: Other Provisions of or Amendments to Underwriting Agreement: Deposit Agreement: Terms and Conditions: Purchased Securities Closing Date, Time and Location: Delayed Delivery Arrangements: Convertibility into Common Stock: Exchangeability into Debt Securities: Modification of items to be covered by the letter from KPMG Peat Marwick delivered pursuant to Section 5(f) at the Closing Date: Address to which communications to the Representative(s) are to be mailed, delivered, telegraphed or telefaxed and confirmed pursuant to Section 11: 29 32 Schedule I Stock-Index Warrants Title of Stock-Index Warrants: [Stock-Index [Call] [Put] Warrants ] Number of Stock-Index Warrants to be issued: Stock Index: Warrant Agreement: Warrant Agent: Form of Stock-Index Warrants: [Registered] [Bearer] [Book-entry form, represented by single global Stock-Index Warrant Certificate] Issuable jointly with other Securities: [Yes] [No] [Number of Stock-Index Warrants issued with each amount or $ _______ principal amount of other Securities] [Detachable Date:] Date from which Stock-Index Warrants are exercisable: Date on which Stock-Index Warrants expire: Exercise Price of Stock-Index Warrants: Formula for Determining Stock-Index Cash Settlement Value: Automatic Exercise: Minimum/Maximum number of Stock-Index Warrants which can be Exercised: Listing: Public Offering price: Purchase price: Time of Delivery: Closing Location: Funds in which Underwriters to make payment: 30 33 Delayed Delivery: [None] [Underwriters' commission shall be ___% of the principal amount of Designated Securities for which Delayed Delivery Contracts have been entered into and the check given in payment of such commission shall be drawn to the order of ________________] [Maximum aggregate principal amount of Designated Securities to be offered and sold pursuant to Delayed Delivery Contracts: [$]_______________] [Minimum principal amount of each Delayed Delivery Contract: [$]________________] Names and addresses of Representatives: Designated Representatives: Address for Notices, etc.. - ---------- * A description of particular tax, accounting or other unusual features of the Securities should be set forth, or referenced to an attached and accompanying description, if necessary to the parties' understanding of the transaction contemplated. Such a description might appropriately be in the form in which such features will be described in the Prospectus, as supplemented, for the offering. Any additional terms and conditions appropriate to an offering of Securities denominated or payable in or indexed to a currency, currencies, currency unit or composite currency other than United States dollars should also be set forth. 31 34 SCHEDULE II Debt Securities/ Junior Subordinated Debt Securities/ Debt Warrants Firm Name $ Amount* - --------- -------- Total _____________ $_____________ - ---------- * If Option Securities are offered, should include the minimum and maximum principal amount or number of shares of Securities, as the case may be. II-1 35 SCHEDULE II All Other Securities Firm Name Participation* - --------- ------------- Total _____________ $_____________ - ---------- * If Option Securities are offered, should include the minimum and maximum principal amount or number of shares of Securities, as the case may be. II-2 36 SCHEDULE III Form of Delayed Delivery Contract _______________, 19___ [Insert name and address of Lead Representative] Dear Sirs: The undersigned hereby agrees to purchase from Republic New York Corporation (the "Company"), and the Company agrees to sell to the undersigned, on ___________ , 19___, (the "Delivery Date"), ____________ aggregate [principal amount] [number of [shares][warrants]] of the Company's [title of securities (the "Securities") offered by the Company's Prospectus, dated ___________ , 19___, and related Prospectus Supplement, dated _______________, 19___, receipt of a copy of which is hereby acknowledged, at a purchase price of _____% of the [principal amount thereof, plus accrued interest (amortization of original issue discount), if any, thereon from ____________, 19___ to the date of payment and delivery] [liquidation preference thereof or shares represented thereby, plus accrued dividends, if any, thereon from ___________, 19___ to the date of payment and delivery) ( ____ per Debt Warrant, Currency Warrant, Stock-Index Warrant, Preferred Stock Warrant or Common Stock Warrant), and on the further terms and conditions set forth in this contract. Payment for the Securities to be purchased by the undersigned shall be made on or before 11:00 A.M., New York City time, on the Delivery Date to or upon the order of the Company in New York Clearing House (next day) funds, at your office or at such other place as shall be agreed between the Company and the undersigned, upon delivery to the undersigned of the Securities in definitive fully registered form (and in such authorized denominations] and registered in such names [and for such number of [shares] [warrants]] as the undersigned may request by written, telegraphic or facsimile communication addressed to the Company not less than five full business days prior to the Delivery Date. If no request is received, the Securities will be registered in the name of the undersigned and issued [for the total number of (shares] [warrants)] (in a denomination equal to the aggregate principal amount of Securities] to be purchased by the undersigned on the Delivery Date. The obligation of the undersigned to take delivery of and make payment for Securities on the Delivery Date, and the obligation of the Company to sell and deliver Securities on the Delivery Date, shall be subject to the conditions (and neither party shall incur any liability by reason of the failure thereof) that (1) the purchase of Securities to be made by the undersigned, which purchase the undersigned represents is not prohibited on the date hereof, shall not on the Delivery III-1 37 Date be prohibited under the laws of the jurisdiction to which the undersigned is subject, and (2) the Company, on or before the Delivery Date, shall have sold to certain underwriters (the "Underwriters") such [number of [shares] [warrants]] [principal amount] of the Securities as is to be sold to them pursuant to the Underwriting Agreement referred to in the Prospectus and Prospectus Supplement mentioned above. Promptly after completion of such sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith. The obligation of the undersigned to take delivery of and make payment for the Securities, and the obligation of the Company to cause the Securities to be sold and delivered, shall not be affected by the failure of any purchaser to take delivery of and make payment for the Securities pursuant to other contracts similar to this contract. This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. It is understood that acceptance of this contract andother similar contracts is in the Company's sole discretion and, without limiting the foregoing, need not be on a first come, first served basis. If this contract is acceptable to the Company, it is required that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned, as of the date first above written, when such counterpart is so mailed or delivered, This agreement shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [Name of Purchaser] By:________________________ [Title of Officer] [Address] Accepted: Republic New York Corporation, By:__________________________ [Authorized Signature] III-2 EX-1.2 3 UNDERWRITING AGREEMENT: TRUST PREFERRED SECURITIES 1 EXHIBIT 1.2 [FORM OF UNDERWRITING AGREEMENT] _____________ PREFERRED SECURITIES [ REPUBLIC NEW YORK CAPITAL __ ] (A DELAWARE BUSINESS TRUST) ____ TRUST PREFERRED SECURITIES (LIQUIDATION AMOUNT [$____ ] PER TRUST PREFERRED SECURITY) GUARANTEED TO A LIMITED EXTENT BY REPUBLIC NEW YORK CORPORATION UNDERWRITING AGREEMENT ------------------ ____________, 199__ [Underwriter] Dear Sirs: Each of [Republic New York Capital ___ ] (the "Trust"), a statutory business trust formed under the Business Trust Act (the "Delaware Act") of the State of Delaware and Republic New York Corporation, a bank holding company organized under the laws of the State of Maryland (the "Company"), confirms its agreement with ____________ and each of the other Underwriters named in Schedule I hereto, collectively, the "Underwriters," which term shall include any underwriter substituted as hereinafter provided in Section 9 hereof), for whom ____________, ____________ and ____________ are acting as Representatives (in such capacity, the "Representatives"), with respect to the sale by the Trust and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares of ___ Trust Preferred Securities (liquidation amount [$____] per trust preferred security) of the Trust (the "Trust Preferred Securities") set forth in Schedule I (the "Securities"). The Trust Preferred Securities will be guaranteed by the Company on a limited basis to the extent the Trust has funds available therefor pursuant to a Guarantee Agreement to be dated as of the Closing Date (the "Guarantee"). The entire proceeds from the sale of the Securities will be combined with the entire proceeds from the sale by the Trust to the Company of its common securities (the "Common Securities") and will be used by the Trust to purchase the ___% Junior Subordinated Debentures due ____ (the "Junior Subordinated Debt Securities") of the Company. The Trust Preferred Securities and the Common Securities will be issued pursuant to the amended and restated declaration of trust of the Trust, to be dated as of the Closing Date (the "Declaration"), among the Company, as Depositor, the trustees named therein (the "Trustees") and the holders from time to time of the Trust Preferred Securities and the Common Securities. The Junior Subordinated Debt Securities will be issued pursuant to an indenture, dated as of December 15, 1997 (the "Base Indenture"), between the Company and Bankers Trust Company, as trustee (the "Debt Trustee"), and a supplement to the Base Indenture, to be dated as of the Closing Date (the "Supplemental Indenture," and together with the Base Indenture and any other amendments or supplements thereto, the "Indenture"), between the Company and the Debt Trustee. 2 Prior to the purchase and public offering of the Securities by the several Underwriters, the Trust, the Company and the Representatives, acting on behalf of the several Underwriters, shall enter into an agreement substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may take the form of an exchange of any standard form of written telecommunication between the Trust and the Company and the Representatives and shall specify such applicable information as is indicated in Exhibit A hereto. The offering of the Securities will be governed by this Agreement, as supplemented by the Pricing Agreement. From and after the date of the execution and delivery of the Pricing Agreement, this Agreement shall be deemed to incorporate the Pricing Agreement. The Trust and the Company understand that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after the Registration Statement becomes effective and the Pricing Agreement has been executed and delivered. SECTION 1. REGISTRATION STATEMENT AND PROSPECTUS. The Trust and the Company have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-________) and a related preliminary prospectus relating to the Securities and the Junior Subordinated Debt Securities under the Securities Act of 1933, as amended (the "1933 Act"), have filed such amendments thereto, if any, and such amended preliminary prospectus or prospectuses and preliminary prospectus supplement or supplements as may have been required to the date hereof, and will promptly file with the Commission a prospectus supplement specifically relating to the Securities pursuant to Rule 424 under the 1933 Act, if necessary. The information, if any, included in such prospectus and prospectus supplement that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information". Each prospectus and prospectus supplement used before such registration statement became effective, and any prospectus and prospectus supplement that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus." Such registration statement, including the exhibits thereto, schedules thereto, if any, and the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became effective and including the Rule 430A Information is herein called the "Registration Statement." The final prospectus, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for use in connection with the offering of the Securities, is herein called the "Prospectus." For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934 2 3 (the "1934 Act") which is incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be. SECTION 2. AGREEMENTS TO SELL AND PURCHASE. (a) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Trust agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Trust, at the price per Trust Preferred Security set forth in the Pricing Agreement, the number of Securities set forth in Schedule I opposite the name of such Underwriter (except as otherwise provided in the Pricing Agreement), plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 9 hereof. (b) As compensation to the Underwriters for their commitment hereunder, and in view of the fact that the proceeds of the sale of the Securities will be used by the Trust to purchase the Junior Subordinated Debt Securities of the Company, the Company hereby agrees to pay at the Closing Date and the Date of Delivery, if any, for the account of the several Underwriters, an amount per Trust Preferred Security as set forth in the Pricing Agreement. SECTION 3. DELIVERY AND PAYMENT. Payment of the purchase price for, and delivery of certificates for, the Securities to be purchased by the Underwriter shall be made at the offices of the Company, or at the offices of the Depository Trust Company ("DTC") if the Securities are to be issued in book-entry form, or at such other place as shall be agreed upon by the Representatives, the Trust and the Company, at 11:00 A.M. on the third business day following the date of the Pricing Agreement, or such other time not later than ten business days after such date as shall be agreed upon by the Representatives, the Trust and the Company (such time and date of payment and delivery being herein called the "Closing Date"). Unless otherwise specified in Schedule I, payment shall be made in immediately available funds by fed wire payable to the order of the Trust against delivery to the Representatives for the account of the several Underwriters of the Trust Preferred Securities in book-entry form through the facilities of The Depository Trust Company. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. ____________, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose payment of the purchase price has not been received by the Closing Date, but such payment shall not relieve such Underwriter from its obligations hereunder. At the Closing Date and the Date of Delivery, if any, the Company will pay, or cause to be paid, the commission payable at such time to the Underwriters under Section 2 hereof in immediately available funds by fed wire payable to ________________. SECTION 4. COVENANTS OF THE TRUST AND THE COMPANY. Each of the Trust and the Company, jointly and severally, covenants with each Underwriter as follows: 3 4 (a) The Trust and the Company, subject to Section 4(c), will comply with the requirements of Rule 430A, if applicable, and will notify the Underwriters immediately, and confirm the notice in writing, (1) of the effectiveness of any post-effective amendment to the Registration Statement and of the filing of any amended Prospectus pursuant to Rule 430A, if applicable, or Rule 424(b), (2) of any comments of the Commission regarding the Registration Statement or the Prospectus (or any of the documents incorporated by reference therein) or of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for that purpose, (4) of the receipt by the Trust or the Company of any notification with respect to the suspension of the qualification of the Securities for offer or sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose and (5) of the happening of any event during the period mentioned in paragraph (d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus (as theretofore amended or supplemented) untrue or which requires the making of any changes in the Registration Statement or the Prospectus (as theretofore amended or supplemented) in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. The Trust and the Company will use their reasonable best efforts to prevent the issuance of any order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus or suspending the qualification of the Securities for offer or sale in any jurisdiction, and if any such order is issued, the Trust and the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time. (b) To furnish to each of the Underwriters, without charge, one copy of the Registration Statement as filed with the Commission and any post-effective amendment thereto, including all financial statements and schedules, exhibits and documents incorporated therein by reference (including exhibits incorporated therein by reference to the extent not previously furnished to the Underwriters) and to deliver to the Underwriters the number of conformed copies of the Registration Statement and any post-effective amendment thereto, excluding exhibits, as the Underwriters or their counsel may reasonably request. (c) To give the Representatives advance notice of their intention to file any amendment or supplement to the Registration Statement or the Prospectus with respect to the Securities, and not to file any such amendment or supplement to which the Representatives shall reasonably object in writing. (d) During the period of time that the Prospectus is required by law to be delivered, to deliver to each Underwriter, without charge, as many copies of the Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. Each of the Trust and the Company consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Securities may be sold, both in connection with the offering or sale of the Securities and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Trust or the Company should be set forth (or incorporated by reference) in the Prospectus in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Trust and the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment 4 5 thereto, and shall in any event forthwith file all reports and any definitive proxy statement or information statement required to be filed by the Trust or the Company with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the date of the Prospectus, and will deliver to each Underwriter, without charge, such number of copies thereof as such Underwriter may reasonably request. If during such period of time any event shall occur which in the judgment of the Representatives should be so set forth in the Prospectus, or which in the judgment of the Representatives makes it necessary to so supplement or amend the Prospectus, the Trust and the Company will consult with the Representatives concerning the necessity of filing with the Commission a supplement or amendment to the Prospectus or a report pursuant to Section 13 or 14 of the 1934 Act. (e) Prior to any public offering of any Securities by the Underwriters, to cooperate with the Representatives and counsel retained by the Representatives in connection with the registration or qualification of the Securities (and any securities issuable upon conversion or exercise of the Securities) for offer and sale under the securities or Blue Sky laws of, and the determination of the eligibility of Securities for investment under the laws of, such jurisdictions as the Underwriter may request; provided, that in no event shall either the Trust or the Company be obligated to qualify to do business as a foreign limited partnership or corporation, as the case may be, or as a securities dealer in any jurisdiction where it is not now so qualified, to conform its capitalization or the composition of its assets to the securities or Blue Sky laws of any jurisdiction or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject. The Company will pay all reasonable fees and expenses (including reasonable counsel fees and expenses) relating to registration or qualification of Securities (and any securities issuable upon conversion or exercise of any Securities) under such securities or Blue Sky laws and in connection with the determination of the eligibility of Securities for investment under the laws of such jurisdictions as the Representatives may designate. In each jurisdiction in which the Securities have been so qualified, the Trust and the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required in connection with the distribution of the Securities. (f) To make generally available to their security holders and to each Underwriter the consolidated earnings statements (which need not be audited) that satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder. (g) If, at the time that the Registration Statement became effective, any information was omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then, immediately following the execution of the Pricing Agreement, to prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of each amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including any amended Prospectus), containing all information so omitted. (h) The Company shall pay or cause to be paid the following: (1) all costs and expenses incurred in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus, the Prospectus and any legal investment memorandum and Blue Sky memorandum as contemplated by Section 4(e), (2) any listing fees incident to any listing of the Securities on a national securities exchange, (3) any fees charged by securities rating agencies for rating any of the Securities, (4) all costs and expenses incurred in connection with the preparation, issuance and delivery of the Securities (other than transfer taxes) and the execution and delivery of 5 6 the Indenture, (5) all costs and expenses incurred in connection with furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of Securities by dealers to whom Securities may be sold, (6) the fees and expenses incurred in connection with the registration of the Securities under the 1934 Act and (7) the fees and expenses of the transfer agent for the Trust Preferred Securities, if any. (i) If this Agreement is terminated by the Representatives because any condition to the obligations of the Underwriters set forth in Section 7 hereof is not satisfied or because of any failure or refusal on the part of the Trust or the Company to comply with the terms of this Agreement or the applicable Pricing Agreement, or if for any reason either of the Trust or the Company shall be unable to perform its obligations herein or therein, the Company will reimburse the several Underwriters, for all out-of-pocket expenses (including the fees and expenses of counsel retained by the Underwriters) reasonably incurred by the Underwriters in connection herewith. Neither the Trust nor the Company, however, will be liable to any of the Underwriters for damages on account of loss of anticipated profits. (j) If specified in Schedule I hereto, during a period beginning from the date hereof to and including the Closing Date, neither the Trust will, without prior written consent of the Representatives, directly or indirectly, sell, offer to sell, contract to sell, grant any option for the sale of, or otherwise dispose of, any Trust Preferred Securities, any security convertible into or exchangeable into or exercisable for, Trust Preferred Securities or any equity securities, substantially similar to the Trust Preferred Securities, except for the Trust Preferred Securities offered hereby nor the Company will, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, contract to sell, grant any option for the sale of, or otherwise dispose of, any Junior Subordinated Debt Securities or any debt securities substantially similar to the Junior Subordinated Debt Securities to be sold to the Trust. (k) To arrange for the listing of the Securities upon notice of issuance on the New York Stock Exchange, Inc. or such other national securities exchange as may be designated in Schedule I. SECTION 5. REPRESENTATIONS AND WARRANTIES. (a) Each of the Trust and the Company, jointly and severally, represents and warrants to each Underwriter as of the date hereof and as of the date of the Pricing Agreement (such latter date being hereinafter referred to as the "Representation Date") as follows: (1) The documents incorporated by reference in the Registration Statement and the Prospectus, when they were filed (or, if an amendment with respect to any such document was filed, when such amendment was filed) with the Commission, conformed in all material respects to the requirements of the 1934 Act, and the rules and regulations of the Commission promulgated thereunder, and any further documents so filed and incorporated by reference will, when they are filed with the Commission, conform in all material respects to the requirements of the 1934 Act and the rules and regulations of the Commission promulgated thereunder; none of such documents, when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a 6 7 material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. (2) The Trust and the Company jointly meet the registrant requirements and the transaction requirements for use of Form S-3 under the 1933 Act in connection with the registration of the Securities. The Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act, and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Trust or the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. At the respective times the Registration Statement and any post-effective amendments thereto became effective and at the Closing Date, the Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time of filing thereof with the Commission, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Trust or the Company in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which consists of the Statements of Eligibility and Qualification on Form T-1 under the Trust Indenture Act of Bankers Trust Company. Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations, if applicable, and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (3) This Agreement has been, and as of the date thereof, the Pricing Agreement will have been, duly authorized, executed and delivered by the Company. (4) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act; all filings required under the laws of the State of Delaware with respect to the creation and valid existence of the Trust as a business trust have been made; under the Delaware Act and the Declaration, the Trust has the business 7 8 trust power and authority to (x) own property and conduct its business, all as described in the Prospectus, (y) enter into and perform its obligations under this Agreement, and (z) issue and perform its obligations under the Trust Preferred Securities and the Common Securities and is not required to be authorized to do business in any other jurisdiction; the Trust is not a party to or otherwise bound by any agreement other than those described in the Prospectus; the Trust does not have any consolidated or unconsolidated subsidiaries; and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles. (5) The Declaration has been duly and validly authorized by the Company and, when executed and delivered by the Company and the Trustees at the Closing Date, and assuming due authorization, execution and delivery thereof by the Property Trustee and the Delaware Trustee (as such terms are defined in the Declaration), will be the valid and binding obligation of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect or by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law; and, at the Closing Date, the Declaration will have been duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). (6) Under the Delaware Act and the Declaration, the execution and delivery by the Trust of this Agreement and the Pricing Agreement, and the performance by the Trust of its obligations thereunder, have been duly authorized by all necessary business trust action on the part of the Trust; and this Agreement has been, and as of the date thereof the Pricing Agreement will have been, duly executed and delivered by the Trust under the law of Delaware. (7) The Common Securities have been duly authorized by the Declaration and, when issued and delivered by the Trust to the Company against payment therefor in accordance with the Declaration, will be validly issued and fully paid and nonassessable undivided beneficial interests in the assets of the Trust; and under the Delaware Act and the Declaration, the issuance of the Common Securities will not be subject to preemptive rights. (8) The Trust Preferred Securities have been duly authorized by the Declaration and, when issued and delivered by the Trust in accordance with the Declaration to the Underwriters and paid for in accordance with this Agreement, will be validly issued, and fully paid and nonassessable undivided beneficial interests in the assets of the Trust; the holders of the Trust Preferred Securities, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability as that extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; under the Delaware Act and the Declaration, the issuance of the Trust Preferred Securities will not be subject to preemptive rights; and the Trust Preferred Securities conform to the description thereof in the Prospectus. 8 9 (9) At the Closing Date, all of the issued and outstanding Common Securities of the Trust will be owned directly or indirectly by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (10) At the Closing Date, the Property Trustee will be the record holder of Junior Subordinated Debt Securities and no security interest, mortgage, pledge, lien, encumbrance, claim or equity will be noted thereon or on the register. (11) The Guarantee has been duly and validly authorized by the Company and, when executed and delivered by the Company at the Closing Date, will constitute a valid and legally binding agreement of the Company enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect or by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law; at the Closing Date, the Guarantee will have been duly qualified under the Trust Indenture Act; and the Guarantee conforms to the description thereof contained in the Prospectus. (12) The Indenture has been duly and validly authorized by the Company and, when executed and delivered by the Company at the Closing Date and, assuming due authorization, execution and delivery by the Debt Trustee, at such Closing Date will constitute a valid and legally binding agreement of the Company enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect or by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law; and at the Closing Date, the Indenture will have been duly qualified under the Trust Indenture Act. (13) The Junior Subordinated Debt Securities have been duly and validly authorized by the Company and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Trust in accordance with the Declaration, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect or by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law; and the Junior Subordinated Debt Securities conform to the description thereof contained in the Prospectus. (14) The issuance and sale of the Trust Preferred Securities by the Trust and the performance by the Trust of its obligations under this Agreement and the Pricing Agreement will not conflict with, result in a breach of any of the terms or provisions of, or constitute a default under, the Declaration or any indenture, mortgage, deed of trust or other material agreement or instrument to which the Trust is now a party or by which it is 9 10 bound, or any order of any court or governmental agency or authority entered in any proceeding to which the Trust was or is now a party or by which it is bound. (15) The issuance and sale of the Securities by the Trust and the issuance of the Junior Subordinated Debt Securities by the Company and the performance by each of the Company or the Trust, as the case may be, of its respective obligations under the terms of this Agreement, the Pricing Agreement, the Guarantee, the Indenture and the Declaration will not conflict with, result in a breach of any of the terms or provisions of, or constitute a default under, the Company's charter or by-laws, or any indenture, mortgage, deed of trust or other material agreement or instrument to which the Company or Republic National Bank of New York (the "Bank") is now a party or by which it is bound, or any order of any court or governmental agency or authority entered in any proceeding to which the Company or the Bank was or is now a party or by which it is bound. Other than the Bank, there is no significant subsidiary of the Company, as that term is defined in Rule 1-02(v) of Regulation S-X, and there are no other subsidiaries of the Company which individually, or in the aggregate, own or lease property or conduct business which is material to the properties or business of the Company and its subsidiaries taken as a whole. (16) No authorization, approval, consent or order of any Delaware court or governmental authority or agency is required to be obtained by the Trust solely in connection with the issuance and sale of the Common Securities and the Trust Preferred Securities or the purchase by the Trust of the Junior Subordinated Debt Securities. (17) The accountants who certified the financial statements and supporting schedules incorporated by reference in the Registration Statement are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. (18) Except to the extent set forth in the Prospectus, neither the Trust nor the Company has received any notice of, nor does it have any actual knowledge of, any failure by it or, in the case of the Company, any of its significant subsidiaries to be in substantial compliance with all existing statutes and regulations applicable to it or, in the case of the Company, such subsidiaries, which failure would materially and adversely affect the conduct of the business of the Trust or of the Company and its subsidiaries, considered as a whole. (19) The statements set forth in the Prospectus under the caption "Certain United States Federal Income Tax Consequences," insofar as they purport to describe the provisions of the law referred to therein, are accurate and complete in all material respects. (20) The Trust will be classified as a "grantor trust" for United States federal income tax purposes and not classified as an association taxable as a corporation for United States federal income tax purposes under federal income tax laws as currently in effect. (21) Neither the Trust nor the Company is an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and neither the Trust nor the Company is subject to regulation under such Act. 10 11 (b) Any certificate signed by any Administrative Trustee of the Trust or officer of the Company and delivered to the Representatives or to counsel for the Underwriters pursuant to the terms of this Agreement shall be deemed a representation and warranty by the Trust or the Company, as the case may be, to the Underwriters as to the matters covered thereby. SECTION 6. INDEMNIFICATION. (a) Each of the Trust and the Company agrees, jointly and severally to indemnify and hold harmless each Underwriter and each person who controls any Underwriter within the meaning of either the 1933 Act or the 1934 Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the 1933 Act, the 1934 Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Prospectus, any preliminary prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that (i) neither the Trust nor the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Trust and/or the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation thereof, and (ii) such indemnity with respect to the Prospectus or any preliminary prospectus shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) from whom the person asserting any such loss, claim, damage or liability purchased the Securities which are the subject thereof if such person did not receive a copy of the Prospectus (or the Prospectus as amended or supplemented) excluding documents incorporated therein by reference at or prior to the confirmation of the sale of such Securities to such person and the untrue statement or omission of a material fact contained in the Prospectus or any preliminary prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented). This indemnity agreement will be in addition to any liability which the Trust or the Company may otherwise have. (b) Each Underwriter severally agrees to indemnify and hold harmless the Trust, including its trustees, and the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity from the Trust and the Company to each Underwriter, but only with reference to written information furnished to the Trust and/or the Company by or on behalf of such Underwriter through the Representatives specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 6, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 6. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the 11 12 commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel), approved by the Representatives in the case of paragraph (a) of this Section 6, representing the indemnified parties under such paragraph (a) who are parties to such action, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). (d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) of this Section 6 is due in accordance with its terms but is for any reason held by a court to be unavailable from the Trust or the Company on grounds of policy or otherwise, the Trust, the Company and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which the Trust, the Company and one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount bears to the sum of such discount and purchase price of the Securities specified in Schedule I hereto and the Trust and the Company are responsible for the balance; provided, however, that (i) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount applicable to the Securities purchased by such Underwriter hereunder and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 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 an Underwriter within the meaning of the Act shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the 1933 Act or the 1934 Act, each officer of the Company who shall have signed the Registration Statement, each director of the Company, and each trustee of the Trust shall have the same rights to contribution as the Trust and the Company, subject in each case to clause (ii) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d). The indemnity and contribution agreements contained in this Section 6 and the representations and warranties of the Trust and the Company contained in this Agreement shall 12 13 remain operative and in full force and effect regardless of (a) any investigation made by or on behalf of any Underwriter, by or on behalf of any person controlling such Underwriter or by or on behalf of the Trust or the Company, (b) acceptance of any of the Securities and payment therefor or (c) any termination of this Agreement. SECTION 7. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER. The obligations of the several Underwriters hereunder are subject to the following conditions: (a) The Registration Statement shall have become effective prior to the date hereof; at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission; and the Representatives shall have received a certificate, dated the Closing Date and signed by (i) one Administrative Trustee of the Trust and (ii) the Chairman of the Board, the President, any Vice Chairman or any Executive Vice President of the Company (each of whom may, as to threatened proceedings, rely upon the best of his information and belief), to such effect and to the effect set forth in clause (f) of this Section 7. If the Trust and the Company have elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the 1933 Act Regulations. (b) At the Closing Date the Representatives shall have received: (1) The opinion, dated as of the Closing Date, and reasonably satisfactory to counsel for the Underwriters, from William F. Rosenblum, Jr., Esq., Senior Vice President, Deputy General Counsel and Corporate Secretary of the Company to the following effect and covering such additional matters as the Representatives may reasonably request: (i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Maryland and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, and has the corporate power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus; the Bank is a duly organized and validly existing national banking association under the laws of the United States, continues to hold a valid certificate to do business as such and has full power and authority to conduct its business as such as described in the Registration Statement and Prospectus; and, except as set forth in the Registration Statement or the Prospectus, each of the Company and the Bank is in all material respects in compliance with all laws, rules, regulations, directives and published interpretations issued or administered by, all conditions imposed in writing by and all agreements entered into with, any bank regulatory agency, authority or body having jurisdiction over the Company of the Bank or any of their respective assets, operations or businesses; each of the Company and the Bank holds all material licenses, certificates and permits from governmental authorities necessary for the conduct of its business as described in 13 14 the Registration Statement; and, other than the Bank, there is no significant subsidiary of the Company, as that term is defined in Rule 1-02(v) of Regulation S-X, and there are no other subsidiaries of the Company which individually, or in the aggregate, own or lease property or conduct business which is material to the properties or business of the Company and its subsidiaries taken as a whole; (ii) the Company has the corporate power and authority to execute and deliver, and perform its obligations under, this Agreement, the Pricing Agreement, the Guarantee, the Indenture and the Declaration; (iii) the Bank is duly authorized, and the Company is duly qualified as a foreign corporation, to do business and is in good standing in each jurisdiction in which such authorization or qualification is required and in which the failure to be authorized or to qualify, as the case may be, could, in the aggregate, have a material adverse effect upon the financial condition, results of operations, business or properties of each of the Company or the Bank and their respective subsidiaries taken as a whole; (iv) all corporate proceedings legally required in connection with the authorization and issuance of the Junior Subordinated Debt Securities and the Guarantee and the sale of the Junior Subordinated Debt Securities and the issuance of the Guarantee by the Company as contemplated by this Agreement have been taken; (v) such counsel does not know of any pending or threatened action, suit or proceeding before any court or governmental agency, authority or body, to which the Company or the Bank is or may be a party of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, or of any franchises, contracts or other documents of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required; (vi) the execution and delivery by the Trust of this Agreement, the Pricing Agreement and the Declaration, the issuance of the Securities and the fulfillment of the terms herein and therein contained do not conflict with, or result in a breach of, or constitute a default under, the Declaration or, to the best knowledge of such counsel, conflict in any material respect with, or result in a material breach of or constitute a material default under any material agreement, indenture or other instrument known to such counsel to which the Trust is a party or by which it is bound, or result in a violation of any law, administrative regulation or court or governmental decree known to such counsel applicable to the Trust, except that such counsel need not express any opinion with respect to (i) matters opined upon by Messrs. Potter, Anderson & Corroon or (ii) the Blue Sky laws of any jurisdiction; (vii) the execution and delivery by the Company of this Agreement, the Pricing Agreement, the Guarantee, the Indenture and the Declaration, the issuance of the Junior Subordinated Debt Securities and the Guarantee and the fulfillment of the terms herein and therein contained do not conflict with, or result in a breach of, or constitute a default under, the Company's charter or bylaws or, to the best knowledge of such counsel, conflict in any material respect with, or result in a 14 15 material breach of or constitute a material default under any material agreement, indenture or other instrument known to such counsel to which the Company or the Bank is a party or by which it is bound, or result in a violation of any law, administrative regulation or court or governmental decree known to such counsel applicable to the Company or the Bank, except that such counsel need not express any opinion with respect to (i) matters opined upon by Messrs. Piper & Marbury or (ii) the Blue Sky laws of any jurisdiction; (viii) all of the outstanding capital stock of the Bank is duly authorized, validly issued, fully paid and (except as provided in 12 U.S.C. Section 55, as amended) nonassessable and owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (ix) all of the issued and outstanding Common Securities of the Trust are owned directly or indirectly by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; (x) the Property Trustee is the record holder of Junior Subordinated Debt Securities and no security interest, mortgage, pledge, lien, encumbrance, claim or equity is noted thereon or on the securities register; (xi) the Company is not an "investment company" within the meaning of Section 3(a) of the Investment Company Act of 1940, as amended, and is not subject to regulation under such Act; (xii) this Agreement, the Pricing Agreement, the Guarantee, the Indenture and the Declaration have been duly authorized, executed and delivered by the Company; and each of the Guarantee and the Indenture is a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect or by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law; (xiii) each of the Guarantee, the Indenture and the Declaration has been duly qualified under, and complies in all material respects with the requirements of, the Trust Indenture Act; (xiv) the Junior Subordinated Debt Securities, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Trust at the Closing Date, will be legal, valid and binding 15 16 obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect or by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law; (xv) the Trust and the Company jointly meet the requirements for use of Form S-3 under the 1933 Act. The Registration Statement is effective under the 1933 Act and, to the best of such counsel's knowledge and information, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission; (xvi) each of the Securities, the Guarantee and the Junior Subordinated Debt Securities conforms in all material respects as to legal matters to the descriptions thereof in the Prospectus (as amended or supplemented, if applicable); (xvii) the Trust is not an "investment company" within the meaning of Section 3(a) of the Investment Company Act of 1940, as amended, and is not subject to regulation under such Act; and (xviii) if the Securities being delivered on the Closing Date are to be listed on any stock exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Trust has filed a preliminary listing application and all the required supporting documents with respect to the Securities with such stock exchange and such counsel has no reason to believe that the securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution. In addition, such counsel shall state that "The Registration Statement and the Prospectus, as amended or supplemented, if applicable (except as to the financial statements and schedules and any other financial and statistical data contained or incorporated by reference therein, as to which no opinion is expressed), complied, as of the date the Prospectus was first filed with the Commission pursuant to Rule 424, and comply, as of the date hereof, as to form in all material respects with the requirements of the 1933 Act and the rules and regulations of the Commission under the 1933 Act (the "Rules"). In passing upon the form of such documents, I have necessarily assumed the correctness and completeness of the statements made or included therein by the Trust and take no responsibility for the accuracy, completeness or fairness of the statements respecting the Trust contained therein except insofar as such statements relate to the description of the Securities. However, in connection with the preparation of the Registration Statement and the Prospectus, I have had conferences with certain trustees or officers and other representatives of the Trust and the Company, and my examination of the Registration Statement and the Prospectus and my discussions in such conferences did not disclose to me any information (relying as to the materiality of any such information primarily upon 16 17 trustees or officers and other representatives of the Trust and the Company) which gave me reason to believe that either the Registration Statement or the Prospectus, as amended or supplemented, if applicable (except as to the financial statements and schedules and any other financial and statistical data contained or incorporated by reference therein, as to which no belief is expressed), contained, as of the date the Prospectus was first filed with the Commission pursuant to Rule 424, or contains, as of the date hereof, any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, as amended or supplemented, if applicable, in light of the circumstances under which they were made), not misleading." In giving such opinion, such counsel may rely (x) as to matters of fact, to the extent they deem proper, upon certificates of trustees or officers of the Trust or the Company, public officials and others, and (y) as to matters of law if other than the law of the United States or New York, on the opinions of local counsel retained by the Trust or the Company, provided that such counsel is satisfactory to the Representatives and counsel retained by the Representatives on behalf of the Underwriters. (2) if reasonably required by the Representatives, from [_________], special tax counsel to the Trust and the Company, to the following effect: (i) the Trust will be classified as a grantor trust and not as an association taxable as a corporation; for United States federal income tax purposes, each holder of Securities will be considered the owner of an undivided interest in the Junior Subordinated Debt Securities, and each holder will be required to include in its gross income its allocable share of income on the Junior Subordinated Debt Securities and any original issue discount accrued with respect to its allocable share of the Junior Subordinated Debt Securities; (ii) the Junior Subordinated Debt Securities will be classified for United States federal income tax purposes as indebtedness of the Company; and (iii) the statements set forth in the Prospectus under the caption "Certain United States Federal Income Tax Consequences," insofar as they purport to describe the provisions of law referred to therein, provide a fair summary of such consequences. (3) from Messrs. Potter Anderson & Corroon, special Delaware counsel to the Trust, to the following effect and covering such additional matters as the Underwriter may reasonably request: (i) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act. (ii) Under the Delaware Business Trust Act and the Declaration, the Trust has the trust power and authority (a) to own its properties and conduct its business (b) to execute and deliver, and to perform its obligations under, the Agreements to which it is a party, and (c) to issue and perform its obligations under the Trust Preferred Securities, all as described in the Declaration. (iii) The Declaration constitutes a valid and binding obligation of the Company and the Trustees, enforceable against the Company and the Trustees, respectively, in accordance with its terms. (iv) Under the Delaware Business Trust Act and the Declaration, the execution and delivery by the Trust of the Agreements to which it is a party, and the performance by the Trust of its obligations thereunder, have been duly authorized by all necessary action on the part of the Trust. (v) The Common Securities have been duly authorized by the Declaration and once duly and validly issued in accordance with the Declaration will represent valid undivided beneficial interests in the assets of the Trust. (vi) The Trust Preferred Securities have been duly authorized by the Declaration and once duly and validly issued in accordance with the Declaration will represent valid and fully paid and, subject to the qualifications set forth in number (vii) below, non-assessable undivided beneficial interests in the assets of the Trust. (vii) The Trust Preferred Securityholders, as beneficial owners of Trust Preferred Securities on the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware, except that the Trust Preferred Securityholders may be obligated to (a) provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers or exchanges of Trust Preferred Securities Certificates and the issuance of replacement Trust Preferred Securities Certificates, and (b) provide security or indemnity in connection with requests of or directions to the Property Trustee to exercise its rights and powers under the Declaration. (viii) Under the Delaware Business Trust Act and the Declaration, the issuance of the Trust Securities is not subject to preemptive rights. (ix) No authorization, approval or other action by, and notice to or filing with, any governmental authority or regulatory body of the State of Delaware is required for the issuance and sale of the Trust Securities. (x) Assuming that the Trust is treated is a grantor trust or partnership for federal income tax purposes, the Securityholders (other than those holders of Trust Securities who reside or are domiciled in the State of Delaware) will have no liability for income taxes imposed by the State of Delaware solely as a result of their participation in the Trust, and the Trust will not be liable for any income tax imposed by the State of Delaware. (xi) The (a) purchase of the Junior Subordinated Debt Securities by the Trust, (b) the distribution of the Junior Subordinated Debt Securities by the Trust in the circumstances contemplated by the Declaration, and (c) the performance by the Trust of the Agreements to which it is a party and the consummation of the transactions contemplated thereunder, will not conflict with or result in a breach or violation of any of the terms or provisions of the Certificate or Declaration or any statute, order, rule or regulation the State of Delaware or any governmental agency or body of the State of Delaware having jurisdiction over the Trust or any of its properties. 17 18 (z) issue and perform its obligations under the Trust Preferred Securities and the Common Securities. (ii) Assuming the Declaration has been duly authorized, executed and delivered by the Trustees and the Company, the Declaration is the valid and binding obligation of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect or by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law. (iii) Under the Delaware Act and the Declaration, the execution and delivery by the Trust of this Agreement and the Pricing Agreement, and the performance by the Trust of its obligations thereunder, have been duly authorized by all necessary business trust action on the part of the Trust; and this Agreement and the Pricing Agreement have been duly executed and delivered by the Trust under the laws of Delaware. (iv) The Common Securities have been duly authorized by the Declaration and are validly issued and represent undivided beneficial interests in the assets of the Trust; and under the Delaware Act and the Declaration, the issuance of the Common Securities is not subject to preemptive rights. (v) The Trust Preferred Securities have been duly authorized by the Declaration and, when delivered to and paid for pursuant to this Agreement, will be validly issued and fully paid and nonassessable undivided beneficial interests in the assets of the Trust; the holders of the Trust Preferred Securities, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; and under the Delaware Act and the Declaration, the issuance of the Trust Preferred Securities is not subject to preemptive rights. Such counsel may note that the Preferred Security holders may be obligated, pursuant to the Declaration, to (i) provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers of Preferred Security Certificates and the issuance of replacement Preferred Security Certificates, and (ii) provide security and indemnity in connection with requests of or directions to the Property Trustee to exercise its rights and powers under the Declaration. (vi) The issuance and sale by the Trust of the Trust Preferred Securities and Common Securities; the execution, delivery and performance by the Trust of this Agreement and the Pricing Agreement; the consummation of the transactions contemplated herein and therein; and compliance by the Trust with its obligations hereunder and thereunder will not violate any of the provisions of the Certificate of Trust or the Declaration, or any applicable Delaware law or administrative regulation. 18 19 (vii) Assuming that the Trust derives no income from or in connection with sources within the State of Delaware and has no assets, activities (other than having a Delaware Trustee as required by the Delaware Act and the filing of documents with the Delaware Secretary of State) or employees in the State of Delaware, no authorization, approval, consent or order of any Delaware court or governmental authority or agency is required to be obtained by the Trust solely in connection with the issuance and sale of the Common Securities and the Trust Preferred Securities or the purchase by the Trust of the Junior Subordinated Debt Securities and the Guarantees except such as have been obtained and such as may be required by state securities laws. (c) The Underwriter shall have received on the Closing Date from Messrs. [________________], counsel retained by the Representatives on behalf of the Underwriters, an opinion with respect to the Securities, the Registration Statement and the Prospectus in the form customarily given by such firm, including an opinion to the effect that the Registration Statement and the Prospectus, as amended or supplemented, if applicable (except as to the financial statements and schedules and any other financial and statistical data contained or incorporated by reference therein, as to which no opinion need be expressed) comply as to form in all material respects with the Act. (d) The Underwriter shall have received on the Closing Date the opinion of [______________],counsel to Bankers Trust Company, in form and substance satisfactory to counsel to the Underwriters to the effect that: (1) Bankers Trust Company has been duly incorporated and is validly existing as a banking corporation in good standing under the laws of the State of New York; (2) each of the Declaration, the Indenture and the Guarantee has been duly authorized, executed and delivered by the Property Trustee, the Indenture Trustee and the Guarantee Trustee, respectively, and constitutes a legal, valid and binding instrument enforceable against the Property Trustee, Indenture Trustee and Guarantee Trustee in accordance with its respective terms, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect or by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law; (3) no consent, approval, authorization or order of any federal or New York State banking authority is required for the consummation of the transactions contemplated by the Declaration, the Indenture or the Guarantee by the Property Trustee, the Indenture Trustee or the Guarantee Trustee, respectively; and (4) neither the execution and delivery of the Declaration, the Indenture or the Guarantee, the consummation of any other of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of Bankers Trust Company or the terms of any indenture or other agreement or instrument known to such counsel and to which Bankers Trust Company is a party or bound or any 19 20 judgment, order or decree known to such counsel to be applicable to Bankers Trust Company of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over Bankers Trust Company. (e) The Underwriter shall have received on the Closing Date the opinion of [____________], counsel to Bankers Trust (Delaware), in form and substance satisfactory to counsel to the Underwriters to the effect that: (1) The Delaware Trustee has been duly incorporated and is validly existing as a banking corporation in good standing under the laws of the State of Delaware, with all necessary power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, the Declaration. (2) The execution, delivery and performance by the Delaware Trustee of the Declaration have been duly authorized by all necessary corporate action on the part of the Delaware Trustee; the Declaration has been duly executed and delivered by the Delaware Trustee, and constitutes the valid and binding obligation of the Delaware Trustee, enforceable against the Delaware Trustee in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect or by general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law. (3) The execution, delivery and performance of the Declaration by the Delaware Trustee does not conflict with or constitute a breach of the Articles of Organization or Bylaws of the Delaware Trustee. (4) No consent, approval or authorization of, or registration with or notice to, any New York or federal banking authority is required for the execution, delivery or performance by the Delaware Trustee of the Declaration. (5) To the best of such counsel's knowledge, based on a review of the certificates representing the Junior Subordinated Debt Securities, no security interest, mortgage, pledge, lien, encumbrance, claim or equity is noted thereon. (f) On the Closing Date, the Representatives shall have received from KPMG Peat Marwick LLP a letter, dated as of the Closing Date, in form and substance reasonably satisfactory to the Representatives confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Registration Statement and the Prospectus and reported on by them comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the carrying out of certain specified procedures (but not an 20 21 examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors, audit and examining committees of the Company and the Bank, and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements in or incorporated in the Prospectus, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated in the Registration Statement and the Prospectus do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; or that said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were at a specified date not more than five business days prior to the date of such letter, any changes in the capital stock (other than issuances or cancellations under the Company's Long-Term Incentive Stock Plan, [Restricted Stock or Restricted Stock Election Plans and exercises of options under the Company's Stock Option Plans]) or long-term indebtedness (other than scheduled repayments of such debt) or any decrease in stockholders' equity of the Company and its subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, except for changes or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur or which are described in such letter, or, for the period from the date of the most recent financial statements included or incorporated in the Registration Statement and the Prospectus to the end of the most recent period for which the Company has prepared internal financial statements, there were any decreases as compared with the corresponding period in the prior fiscal year in the total amounts of net interest income or income before income taxes of the Company and its subsidiaries or in the total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur or which are described in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; 21 22 (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 6 and 7 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in the Registration Statement and the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and (iv) if pro forma financial statements are included or incorporated in the Registration Statement and Prospectus, on the basis of a reading of the unaudited pro forma financial statements, carrying out certain specified procedures, inquiries of certain officials of the Company and the acquired company who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. References to the Registration Statement and the Prospectus in this paragraph (f) are to such documents as amended and supplemented at the date of the letter. (g) The Company shall have furnished to the Representatives a certificate signed by a senior officer of the Company in form reasonably satisfactory to them that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of such Closing Date with the same effect as if made on the Closing Date and the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to such Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated in the Prospectus, there has been no material adverse change in the financial or business condition or earnings of the Company and its subsidiaries, considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus. (h) The Trust shall have furnished to the Representatives a certificates signed by an Administrative Trustee in a form reasonably satisfactory to them that the representations and warranties of the Trust in this Agreement are true and correct in all material respects on and as of such Closing Date with the same effect as if made on the Closing Date and the Trust has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to such Closing Date. 22 23 (i) If the Securities are to be listed on the New York Stock Exchange, Inc. or any other national stock exchange, such Securities shall have been duly listed, subject to notice of issuance, on such stock exchange. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, such Closing Date by the Representatives. Notice of such cancellation shall be given to the Trust and the Company in writing or by telephone or telegraph confirmed in writing. SECTION 8. TERMINATION OF AGREEMENT. This Agreement shall be subject to termination prior to delivery of and payment for the Securities at the applicable Closing Date, in the absolute discretion of the Representatives, by written notice given to the Trust and the Company, or in the absolute discretion of the Trust and the Company, by written notice given to the Representatives, if, on or prior to such date, (a) there has been any material adverse change in the financial or business condition or earnings of the Company or its subsidiaries considered as one enterprise, (b) on or after the date hereof, there has been an outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of the Representatives, impracticable to market such Securities, or in the reasonable judgment of the Company, impracticable to issue such Securities, (c) trading in any securities of the Trust, the Company or the Bank has been suspended by the Commission or a national securities exchange, or trading generally on the New York Stock Exchange has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, or a banking moratorium has been declared by either federal or New York authorities, (d) there shall have occurred a downgrading in the rating assigned to any of the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization" (as defined by the Commission for purposes of Rule 436(g) under the Act), or (e) any such statistical rating organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities or preferred stock which, in the professional judgment of the Representatives, would have, with respect to the purchase of the Securities, a material adverse effect on the price and/or value of the Securities. SECTION 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the Underwriters shall fail on the Closing Date to purchase the Securities that it or they are obligated to purchase hereunder (the "Defaulted Securities"), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any substitute underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be approved by the Representatives and upon the terms herein set forth; if, however, the Representatives have not completed such arrangements within such 24-hour period, then: (a) if the principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of Securities, the non-defaulting Underwriters shall be obligated to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Securities, the Company shall be entitled for an additional 24-hour period to find one or 23 24 more substitute underwriters satisfactory to the Representatives in their reasonable discretion to purchase such Defaulted Securities. In the event of any such default either the Representatives or the Trust and the Company shall have the right to postpone the Closing Date for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements relating to the purchase of the Securities. If the principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Securities, and neither the Representatives nor the Company make arrangements pursuant to this Section 9 within the period stated for the purchase of the Defaulted Securities, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter to the Company except as provided in Section 6. No action taken pursuant to this Section 9 shall relieve any defaulting Underwriter from liability in respect of its default. A substitute underwriter hereunder shall be an Underwriter for all purposes of this Agreement. SECTION 10. NOTICES. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Representatives shall be directed to ____________, attention __________; and notices to each of the Trust and the Company shall be directed to it at its office at 452 Fifth Avenue - Tower 2, New York, New York 10018, attention: Stephen J. Saali, Senior Vice President of the Company, with a copy to William F. Rosenblum, Jr., Esq., Senior Vice President of the Company, at 452 Fifth Avenue - Tower 7, New York, New York 10018. SECTION 11. PARTIES. This Agreement and the Pricing Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Trust and the Company and their respective successors and legal representatives. Nothing expressed or mentioned in this Agreement or the Pricing Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Trust and the Company and their respective successors and legal representatives and the controlling persons and trustees, officers and directors referred to in Section 6 hereof and their respective successors, heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or the Pricing Agreement or any provision herein or therein contained. This Agreement and the Pricing Agreement and all conditions and provisions hereof and thereof are intended to be for the sole and exclusive benefit of the Underwriters, the Trust and the Company and their respective successors and legal representatives and said controlling persons, trustees, officers and directors and their respective successors, heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from the Underwriter shall be deemed to be a successor by reason merely of such purchase. 24 25 SECTION 12. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the trustees, officers and directors and controlling persons referred to in Section 6 hereof, and no other person will have any right or obligation hereunder. SECTION 13. GOVERNING LAW AND TIME. This Agreement and the Pricing Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in said State. Specified times of day refer to New York City time. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Trust and the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters and the Trust and the Company in accordance with its terms. Very truly yours, [REPUBLIC NEW YORK CAPITAL ___ ] By: ____________________________ Administrative Trustee REPUBLIC NEW YORK CORPORATION By: ____________________________ CONFIRMED AND ACCEPTED, as of the date first above written: [Insert rep names] BY: [UNDERWRITER] By: ___________________________________ Authorized Signatory for themselves and as Representatives of other underwriters named in Schedule I hereto. 25 26 Schedule I LIST OF UNDERWRITERS Underwriter Amount - ----------- ------ 27 EXHIBIT A _____________ PREFERRED SECURITIES [ REPUBLIC NEW YORK CAPITAL __ ] (A DELAWARE BUSINESS TRUST) ____TRUST PREFERRED SECURITIES (LIQUIDATION AMOUNT [$___ ] PER TRUST PREFERRED SECURITY) GUARANTEED TO A LIMITED EXTENT BY REPUBLIC NEW YORK CORPORATION PRICING AGREEMENT ----------------- _______________, 199__ [UNDERWRITER] Dear Sirs: Reference is made to the Underwriting Agreement, dated __________, ____ (the "Underwriting Agreement"), relating to the purchase, by the Underwriters named in Schedule I thereto (the "Underwriters"), of the above-referenced ___ Trust Preferred Securities (the "Trust Preferred Securities"), of [ Republic New York Capital __ ], a business trust formed under the laws of Delaware (the "Trust"). Capitalized terms in this Pricing Agreement that are not defined herein have the meanings assigned in the Underwriting Agreement. Pursuant to Section 2 of the Underwriting Agreement, each of the Trust and the Company agree with each of the several Underwriters as follows: 1. The initial public offering price for the Securities, and the purchase price per Security for the Securities to be paid by the several Underwriters, determined as provided in said Section 2, shall be [$____]. 2. The compensation per Trust Preferred Security to be paid by the Company to the several Underwriters in respect of their commitments hereunder shall be $_____. In view of the fact that the proceeds of the sale of the Trust Preferred Securities will be invested in Junior Subordinated Debt Securities of the Company, the Company has agreed to pay to the Underwriters, as compensation for their arranging the investment therein of such proceeds, $_____ per Trust Preferred Security (or $_______ in the aggregate); provided, that such 28 compensation for sales of ______ or more Trust Preferred Securities to a single purchaser will be $_____ per Trust Preferred Security. Therefore, to the extent of such sales, the actual amount of Underwriters' compensation will be less than the aggregate amount specified in the preceding sentence. See "Underwriting." If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Trust and the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriter, the Trust and the Company in accordance with its terms. Very truly yours, [ REPUBLIC NEW YORK CAPITAL __ ] By: ________________________ Administrative Trustee REPUBLIC NEW YORK CORPORATION By: ________________________ CONFIRMED AND ACCEPTED, as of the date first above written: [Insert rep names] By: [UNDERWRITER] By: _______________________ A-2 EX-4.10 4 JUNIOR SUBORDINATED INDENTURE, DATED DEC. 15, 1997 1 EXHIBIT 4.10 ================================================================================ REPUBLIC NEW YORK CORPORATION TO BANKERS TRUST COMPANY TRUSTEE ------------------------ JUNIOR SUBORDINATED INDENTURE DATED AS OF DECEMBER 15, 1997 ================================================================================ 2 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 ACT INDENTURE 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 sec.311 (a)................................................................ 6.13(a) (b)................................................................ 6.13(b) (b)(2)............................................................. 7.3(a)(2) sec.312 (a)................................................................ 7.1, 7.2(a) (b)................................................................ 7.2(b) (c)................................................................ 7.2(c) sec.313 (a)................................................................ 7.3(a) (b)................................................................ 7.3(b) (c)................................................................ 7.3(a), 7.3(b) (d)................................................................ 7.3(c) sec.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 sec.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 sec.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) sec.317 (a)(1)............................................................. 5.3 (a)(2)............................................................. 5.4 (b)................................................................ 10.3 sec.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 3 TABLE OF CONTENTS
PAGE ---- ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................. 1 SECTION 1.1. Definitions. ..................................................... 1 SECTION 1.2. Compliance Certificate and Opinions. ............................. 7 SECTION 1.3. Forms of Documents Delivered to Trustee. ......................... 7 SECTION 1.4. Acts of Holders. ................................................. 8 SECTION 1.5. Notices, Etc. to Trustee and Company. ............................ 8 SECTION 1.6. Notice to Holders; Waiver. ....................................... 9 SECTION 1.7. Conflict with Trust Indenture Act. ............................... 9 SECTION 1.8. Effect of Headings and Table of Contents. ........................ 9 SECTION 1.9. Successors and Assigns. .......................................... 9 SECTION 1.10. Separability Clause. ............................................. 9 SECTION 1.11 Benefits of Indenture. ........................................... 9 SECTION 1.12. Governing Law. ................................................... 9 SECTION 1.13. Non-Business Days. ............................................... 9 ARTICLE II. SECURITY FORMS ........................................................ 10 SECTION 2.1. Forms Generally. ................................................. 10 SECTION 2.2. Form of Face of Security. ........................................ 10 SECTION 2.3. Form of Reverse of Security. ..................................... 13 SECTION 2.4. Additional Provisions Required in Global Security. ............... 16 SECTION 2.5. Form of Trustee's Certificate of Authentication. ................. 16 ARTICLE III. THE SECURITIES........................................................ 16 SECTION 3.1. Title and Terms. ................................................. 16 SECTION 3.2. Denominations. ................................................... 18 SECTION 3.3. Execution, Authentication, Delivery and Dating. .................. 18 SECTION 3.4. Temporary Securities. ............................................ 19 SECTION 3.5. Global Securities. ............................................... 20 SECTION 3.6. Registration, Transfer and Exchange Generally; Certain Transfers and Exchanges. ................................................. 21 SECTION 3.7. Mutilated, Destroyed Lost and Stolen Securities. ................. 22 SECTION 3.8. Payment of Interest; Interest Rights Preserved. .................. 23 SECTION 3.9. Persons Deemed Owners. ........................................... 24 SECTION 3.10. Cancellation. .................................................... 24 SECTION 3.11. Computation of Interest. ......................................... 24 SECTION 3.12. Deferrals of Interest Payment Dates. ............................. 24 SECTION 3.13. Right of Set-Off. ................................................ 25 SECTION 3.14. Agreed Tax Treatment. ............................................ 25 SECTION 3.15. Extension of Stated Maturity; Adjustment of Stated Maturity Upon an Exchange. ................................................... 25 SECTION 3.16. CUSIP Numbers. ................................................... 26 ARTICLE IV. SATISFACTION AND DISCHARGE............................................. 26 SECTION 4.1. Satisfaction and Discharge of Indenture. ......................... 26 SECTION 4.2. Application of Trust Money. ...................................... 27
ii 4
PAGE ---- ARTICLE V. REMEDIES ............................................................... 27 SECTION 5.1. Events of Default. ............................................... 27 SECTION 5.2. Acceleration of Maturity; Rescission and Annulment. ............. 28 SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee. ....................................................... 29 SECTION 5.4. Trustee May File Proofs of Claim. ................................ 30 SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities ....... 31 SECTION 5.6. Application of Money Collected. .................................. 31 SECTION 5.7. Limitation on Suits. ............................................. 31 SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest. ...................................................... 31 SECTION 5.9. Restoration Of Rights and Remedies. .............................. 32 SECTION 5.10. Rights and Remedies Cumulative. .................................. 32 SECTION 5.11. Delay or Omission Not Waiver ..................................... 32 SECTION 5.12. Control by Holders. .............................................. 32 SECTION 5.13. Waiver of Past Defaults. ......................................... 33 SECTION 5.14. Undertaking for Costs. ........................................... 33 SECTION 5.15. Waiver of Usury, Stay or Extension Laws. ......................... 33 ARTICLE VI. THE TRUSTEE............................................................ 33 SECTION 6.1. Certain Duties and Responsibilities. ............................. 33 SECTION 6.2. Notice of Defaults. .............................................. 34 SECTION 6.3. Certain Rights of Trustee. ....................................... 35 SECTION 6.4. Not Responsible for Recitals or Issuance of Securities. .......... 35 SECTION 6.5. May Hold Securities. ............................................. 35 SECTION 6.6. Money Held in Trust. ............................................. 36 SECTION 6.7. Compensation and Reimbursement. .................................. 36 SECTION 6.8. Disqualification; Conflicting Interests. ......................... 36 SECTION 6.9. Corporate Trustee Required; Eligibility. ......................... 36 SECTION 6.10. Resignation and Removal; Appointment of Successor. ............... 37 SECTION 6.11. Acceptance of Appointment by Successor. .......................... 37 SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business. ..... 39 SECTION 6.13. Preferential Collection of Claims Against Company. ............... 39 SECTION 6.14. Appointment of Authenticating Agent. ............................. 39 SECTION 6.15. Trustee's Rights and Obligations. ................................ 40 ARTICLE VII. HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY..................... 40 SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders. ....... 40 SECTION 7.2. Preservation of Information, Communications to Holders. .......... 41 SECTION 7.3. Reports by Trustee. .............................................. 41 SECTION 7.4. Reports by Company. .............................................. 41 ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................. 41 SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms. ............ 41 SECTION 8.2. Successor Corporation Substituted. ............................... 42
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PAGE ---- ARTICLE IX. SUPPLEMENTAL INDENTURES................................................ 43 SECTION 9.1. Supplemental Indentures without Consent of Holders. ............. 43 SECTION 9.2. Supplemental Indentures with Consent of Holders. ................ 43 SECTION 9.3. Execution of Supplemental Indentures. ............................ 44 SECTION 9.4. Effect of Supplemental Indentures. ............................... 44 SECTION 9.5. Conformity with Trust Indenture Act. ............................. 45 SECTION 9.6. Reference in Securities to Supplemental Indentures. .............. 45 ARTICLE X. COVENANTS............................................................... 45 SECTION 10.1. Payment of Principal, Premium and Interest ...................... 45 SECTION 10.2. Maintenance of Office or Agency. ................................. 45 SECTION 10.3. Money for Security Payments to be Held in Trust .................. 45 SECTION 10.4. Statement as to Compliance. ...................................... 46 SECTION 10.5. Waiver of Certain Covenants. ..................................... 46 SECTION 10.6. Payment of the Trust's Costs and Expenses. ....................... 47 SECTION 10.7. Additional Covenants. ............................................ 47 SECTION 10.8. Information Returns. ............................................. 48 ARTICLE XI. REDEMPTION OF SECURITIES............................................... 48 SECTION 11.1. Applicability of This Article. ................................... 48 SECTION 11.2. Election to Redeem; Notice to Trustee. ........................... 48 SECTION 11.3. Selection of Securities to be Redeemed. .......................... 48 SECTION 11.4. Notice of Redemption. ............................................ 49 SECTION 11.5. Deposit of Redemption Price. ..................................... 49 SECTION 11.6. Payment of Securities Called for Redemption. ..................... 49 SECTION 11.7. Company's Right of Redemption. ................................... 50 ARTICLE XII. SINKING FUNDS......................................................... 50 SECTION 12.1. Applicability of Article. ........................................ 50 SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities. ........... 50 SECTION 12.3. Redemption of Securities for Sinking Fund. ....................... 51 ARTICLE XIII. SUBORDINATION OF SECURITIES.......................................... 52 SECTION 13.1. Securities Subordinate to Senior Debt. ........................... 52 SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc. .................. 52 SECTION 13.3. Prior Payment to Senior Debt Upon Dissolution, Etc. .............. 53 SECTION 13.4. No Payment When Senior Debt in Default. .......................... 54 SECTION 13.5. Payment Permitted If No Default. ................................. 54 SECTION 13.6. Subrogation to Rights of Holders of Senior Debt. ................. 54 SECTION 13.7. Provisions Solely to Define Relative Rights. ..................... 55 SECTION 13.8. Trustee to Effectuate Subordination. ............................. 55 SECTION 13.9. No Waiver of Subordination Provisions. ........................... 55 SECTION 13.10. Notice to Trustee. ............................................... 55 SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent ... 55 SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt. ................ 56 SECTION 13.13. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights. .............................................. 56 SECTION 13.14. Article Applicable to Paying Agents. ............................. 56 SECTION 13.15. Certain Conversions or Exchanges Deemed Payments ................. 56
iv 6 ANNEX A -- FORM OF ORIGINAL DECLARATION OF TRUST ANNEX B -- FORM OF AMENDED AND RESTATED DECLARATION OF TRUST ANNEX C -- FORM OF GUARANTEE AGREEMENT v 7 INDENTURE JUNIOR SUBORDINATED INDENTURE, dated as of December 15, 1997, 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 "Trust Preferred Securities") and common interests in such Trusts (the "Common Securities" and, collectively with the Trust Preferred 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, 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. 1 8 "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 meaning 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 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. "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. "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. 2 9 "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 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")). "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 3 10 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. "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. 4 11 "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. "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 13.2. "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 Trust Preferred 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. "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. "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 5 12 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 Trust Preferred 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 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. 6 13 "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. sec.sec. 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 Preferred Securities" has the meaning specified in the first recital of this Indenture. "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; (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 7 14 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. (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, 8 15 (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 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. 9 16 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 Trust Preferred 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 Trust Preferred Securities other than Book-Entry Trust Preferred 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 VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.] 10 17 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 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 11 18 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 Trust Preferred 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 Trust Preferred 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 12 19 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] 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 (the "Declaration of Trust "), among Republic New York Corporation, as Depositor, Republic New York Capital 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 13 20 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.] 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 Trust Preferred Securities then outstand- 14 21 ing 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 Trust Preferred 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.] [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 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 Trust Preferred 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 Trust Preferred 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 XII 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. 15 22 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 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 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; 16 23 (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; (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; 17 24 (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. 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 18 25 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 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. 19 26 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 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. 20 27 SECTION 3.6. Registration, Transfer and Exchange Generally; Certain Transfers and Exchanges. (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 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. 21 28 (b) Certain Transfers and Exchanges. Notwithstanding any other provision of the Indenture, transfers and exchanges of Securities and beneficial interests in a Global Trust Preferred Security of the kinds specified in this Section 3.6(b) shall be made only in accordance with this Section 3.6(b). (i) Non-Global Security to Global Security. If the Holder of a 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. 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. 22 29 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. 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 23 30 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. 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 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 24 31 (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 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 Trust Preferred 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 25 32 Trust is not in arrears on payments of Distributions on its Trust Preferred 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 Trust Preferred 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 Trust Preferred 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 Trust Preferred 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 Trust Preferred 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 (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; 26 33 (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 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 27 34 (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. 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 Trust Preferred 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 Trust Preferred 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 XII. 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 28 35 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 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 Trust Preferred 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 29 36 (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. 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. 30 37 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 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 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 31 38 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 Trust Preferred 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 Trust Preferred Securities of the corresponding series held by such Holder. The holders of any corresponding series of Trust Preferred 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. 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, 32 39 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. 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, 33 40 (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: (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. 34 41 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; (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. 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. 35 42 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 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 36 43 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 (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 37 44 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 (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 38 45 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). 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 39 46 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: 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. 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. 40 47 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. (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 corporation formed by such consolidation or into which the Company is merged or the Person 41 48 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. 42 49 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 Trust Preferred Securities shall remain outstanding, the holders of such Trust Preferred 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 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 43 50 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 XII 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 Trust Preferred Securities remains outstanding, no such amendment shall be made that adversely affects the holders of such Trust Preferred 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 Trust Preferred 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 Trust Preferred 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. 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 44 51 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. 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. 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 45 52 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 (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 46 53 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. 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. 47 54 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 Trust Preferred 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 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 48 55 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 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. 49 56 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, 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 SINKING FUNDS SECTION 12.1. 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 12.2. 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 50 57 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 12.3. 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 satisfied by delivering and crediting Securities pursuant to Section 12.2 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 12.2 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 12.3. 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 12.3. 51 58 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 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 12.3. ARTICLE XIII SUBORDINATION OF SECURITIES SECTION 13.1. 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 13.2. 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 52 59 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 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 13.3. 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 12.2 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 13.2 would be applicable. 53 60 SECTION 13.4. 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 12.2 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 13.2 would be applicable. SECTION 13.5. 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 13.6. Subrogation to Rights of Holders of Senior Debt. Subject to the payment of all Senior Debt to the extent required under Sections 13.2 and 13.3 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 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, 54 61 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 13.7. 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 13.8. 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 13.9. 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 13.10. 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, 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 13.11. 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 55 62 amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. SECTION 13.12. 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 13.13. 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 13.14. 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 13.15. 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 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. 56 63 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/ STEPHEN J. SAALI ------------------------------------ Name: Stephen J. Saali Title: Senior Vice President BANKERS TRUST COMPANY as Trustee [SEAL] By: /s/ SANDRA J. SHAFFER ------------------------------------ Name: Sandra J. Shaffer Title: Assistant Vice President 57 64 ANNEX A FORM OF REPUBLIC NEW YORK CAPITAL DECLARATION OF TRUST This DECLARATION OF TRUST, dated as of , 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 J. 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 III (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. sec. 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 and substantially in the form to be included as an exhibit to the 1933 Act Registration Statement referred to below, to provide for the contemplated operation of the Trust created hereby and the issuance of the Preferred Securities and Common Securities referred to therein (the "Trust Securities"). 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, (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 Preferred 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 Preferred 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 Preferred 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 A-1 65 documents as the Depositor, on behalf of the Trust, may deem necessary or desirable to register the Preferred 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 Preferred 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 6 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. 5. This Declaration of Trust may be executed in one or more counterparts. 6. 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. 7. 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 part thereof. The Trustees make no representations as to the validity or sufficiency of this Declaration of Trust. 8. (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 Trust 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 Trust Securities might properly be paid. 9. 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 A-2 66 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. 10. The provisions of Section 9 shall survive the termination of this Declaration of Trust or the earlier resignation or removal of the Delaware Trustee. 11. The Trust created hereby shall terminate on . 12. The Trust may terminate without issuing any Trust Securities at the sole election of the Depositor. 13. 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 provisions of Sections 3540 and 3561 of Title 12 of the Delaware Code shall not apply to the Trust. A-3 67 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: ------------------------------------ Name: Title: 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 Administrative Trustee -------------------------------------- STEPHEN J. SAALI, not in his individual capacity but solely as Administrative Trustee -------------------------------------- A-4 68 ANNEX B ================================================================================ 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 , REPUBLIC NEW YORK CAPITAL - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 69 REPUBLIC NEW YORK CAPITAL 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 ART SECTION SECTION - --------------- -------------------- (sec.) 310(a)(1) ....................................................... 8.7 (a)(2) ....................................................... 8.7 (a)(3) ....................................................... 8.9 (a)(4) ....................................................... 2.7(a)(ii) (b) ....................................................... 8.8 (sec.) 311(a) ....................................................... 8.13 (b) ....................................................... 8.13 (sec.) 312(a) ....................................................... 5.7 (b) ....................................................... 5.7 (c) ....................................................... 5.7 (sec.) 313(a) ....................................................... 8.14(a) (a)(4) ....................................................... 8.14(b) (b) ....................................................... 8.14(b) (c) ....................................................... 10.8 (d) ....................................................... 8.14(c) (sec.) 314(a) ....................................................... 8.15 (b) ....................................................... Not Applicable (c)(1) ....................................................... 8.16 (c)(2) ....................................................... 8.16 (c)(3) ....................................................... Not Applicable (e) ....................................................... 1.1, 8.16 (sec.) 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 (sec.) 316(a) ....................................................... Not Applicable (a)(l)(A) ....................................................... Not Applicable (a)(l)(B) ....................................................... Not Applicable (a)(2) ....................................................... Not Applicable (b) ....................................................... 5.14 (c) ....................................................... 6.7 (sec.) 317(a)(1) ....................................................... Not Applicable (a)(2) ....................................................... Not Applicable (b) ....................................................... 5.9 (sec.) 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. B-i 70 TABLE OF CONTENTS
PAGE ----- ARTICLE I. DEFINED TERMS SECTION 1.1. Definitions........................................................ B-1 ARTICLE II. ESTABLISHMENT OF THE TRUSTS SECTION 2.1. Name............................................................... B-7 SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business........ B-7 SECTION 2.3. Initial Contribution of Trust Property, Organizational Expenses.... B-8 SECTION 2.4. Issuance of Preferred Securities................................... B-8 SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of Junior Subordinated Debt Securities................................ B-8 SECTION 2.6. Purpose; Appointment of Trustees................................... B-8 SECTION 2.7. Authorization to Enter into Certain Transactions................... B-9 SECTION 2.8. Assets of Trust.................................................... B-12 SECTION 2.9. Title to Trust Property............................................ B-12 ARTICLE III. PAYMENT ACCOUNT SECTION 3.1. Payment Account.................................................... B-12 ARTICLE IV. DISTRIBUTIONS; REDEMPTION SECTION 4.1. Distributions...................................................... B-12 SECTION 4.2. Redemption......................................................... B-13 SECTION 4.3. Subordination of Common Securities................................. B-15 SECTION 4.4. Payment Procedures................................................. B-15 SECTION 4.5. Tax Returns and Reports............................................ B-17 SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust........................ B-17 SECTION 4.7. Payments under Indenture........................................... B-17 ARTICLE V. TRUST SECURITIES CERTIFICATES SECTION 5.1. Initial Ownership.................................................. B-16 SECTION 5.2. Trust Securities Certificates...................................... B-16 SECTION 5.3. Execution and Delivery of Trust Securities Certificates............ B-16 SECTION 5.4. Restrictions on Transfer; Registration of Transfer and Exchange of Preferred Securities Certificates.................................. B-17 SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates....................................................... B-17 SECTION 5.6. Persons Deemed Security Holders.................................... B-18 SECTION 5.7. Access to List of Securityholders' Names and Addresses............. B-18 SECTION 5.8. Maintenance of Office or Agency; Transfer Agent.................... B-18 SECTION 5.9. Appointment of Paying Agent........................................ B-18 SECTION 5.10. Ownership of Common Securities by Depositor........................ B-19 SECTION 5.11. Book-Entry Preferred Securities Certificates; Common Securities Certificates....................................................... B-19 SECTION 5.12. Notices to Clearing Agency......................................... B-20 SECTION 5.13. Definitive Preferred Securities Certificates....................... B-20 SECTION 5.14. Rights of Securityholders.......................................... B-20 ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING SECTION 6.1. Limitations on Preferred Securityholders' Voting Rights............ B-22 SECTION 6.2. Notice of Meetings................................................. B-23 SECTION 6.3. Meetings of Preferred Securityholders.............................. B-23 SECTION 6.4. Voting Rights...................................................... B-23 SECTION 6.5. Proxies, etc....................................................... B-23
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PAGE ----- SECTION 6.6. Securityholder Action by Written Consent........................... B-24 SECTION 6.7. Record Date for Voting and Other Purposes.......................... B-24 SECTION 6.8. Acts of Preferred Securityholders.................................. B-24 SECTION 6.9. Inspection of Records.............................................. B-25 ARTICLE VII. REPRESENTATIONS AND WARRANTIES SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee................................................... B-25 SECTION 7.2. Representations and Warranties of Depositor........................ B-26 ARTICLE VIII. THE TRUSTEES SECTION 8.1. Certain Duties and Responsibilities................................ B-26 SECTION 8.2. Certain Notices.................................................... B-27 SECTION 8.3. Certain Rights of Property Trustee................................. B-27 SECTION 8.4. Not responsible for Recitals....................................... B-29 SECTION 8.5. May Hold Securities................................................ B-29 SECTION 8.6. Compensation, Indemnity; Fees...................................... B-30 SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees....... B-31 SECTION 8.8. Conflicting Interests.............................................. B-31 SECTION 8.9. Co-Trustees and Separate Property Trustee.......................... B-31 SECTION 8.10. Resignation and Removal; Appointment of Successor.................. B-32 SECTION 8.11. Acceptance of Appointment by Successor............................. B-33 SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business........ B-34 SECTION 8.13. Preferential Collection of Claims Against Depositor or Trust....... B-34 SECTION 8.14. Reports by Property Trustee........................................ B-35 SECTION 8.15. Reports to the Property Trustee.................................... B-35 SECTION 8.16. Evidence of Compliance with Conditions Precedent................... B-35 SECTION 8.17 Number of Trustees................................................. B-35 SECTION 8.18. Delegation of Power................................................ B-36 ARTICLE IX. TERMINATION, LIQUIDATION AND MERGER SECTION 9.1. Termination Upon Expiration Date................................... B-36 SECTION 9.2. Early Termination.................................................. B-36 SECTION 9.3. Termination........................................................ B-37 SECTION 9.4. Liquidation........................................................ B-37 SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust.............................................................. B-38 ARTICLE X. MISCELLANEOUS PROVISIONS SECTION 10.1. Limitation of Rights of Security Holders........................... B-39 SECTION 10.2. Liability of the Common Securityholder............................. B-39 SECTION 10.3. Amendment.......................................................... B-39 SECTION 10.4. Separability....................................................... B-40 SECTION 10.5. Governing Law...................................................... B-40 SECTION 10.6. Payments Due on Non-Business Day................................... B-40 SECTION 10.7. Successors......................................................... B-40 SECTION 10.8. Headings........................................................... B-40 SECTION 10.9. Reports, Notices and Demands....................................... B-41 SECTION 10.10 Agreement Not to Petition.......................................... B-41 SECTION 10.11 Trust Indenture Act, Conflict with Trust Indenture Act............. B-41 SECTION 10.12 Acceptance of Terms of Declaration of Trust, Guarantee and Indenture.......................................................... B-42
B-iii 72 AGREEMENT Amended and Restated Declaration of Trust, dated as of , , 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 18, 1997 (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 19, 1997 (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 [title of Pfd Securities] Preferred Securities (the "Preferred Securities") by the Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust from the Depositor of all of the right, title and interest in the Junior Subordinated Debt Securities and (iv) the appointment of 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"); 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: (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; B-1 73 (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 "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 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. "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. B-2 74 "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 Underwriting 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 [title of common securities] Common Securities, each representing an undivided beneficial interest in the assets of the Trust, having a Liquidation Amount of $ and having the rights provided therefor in this Declaration of Trust, including the right to receive Distributions and a Liquidation Distribution as provided herein. "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 Preferred Securities Certificate" means Preferred 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. sec.sec. 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 B-3 75 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 (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 Preferred 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 Preferred Securities" means a beneficial interest in the Preferred Securities, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 5.11. "Global Preferred Securities Certificate" means a certificate evidencing ownership of Global Preferred 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 [title of junior subordinated debt], 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 Preferred 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, B-4 76 and (b) with respect to a 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 $ 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 Preferred Securities, means, as of the date of determination, all Preferred Securities theretofore executed and delivered under this Declaration of Trust, except: (a) Preferred Securities theretofore canceled by the Property Trustee or delivered to the Property Trustee for cancellation; (b) Preferred 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 Preferred Securities, provided that if such Preferred Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Declaration of Trust; and (c) Preferred Securities which have been paid or in exchange for or in lieu of which other Preferred 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 Preferred Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Preferred Securities owned by the Depositor, any Trustee or any Affiliate B-5 77 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 Preferred 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 Preferred Securities are owned by the Depositor, one or more of the Trustees and/or any such Affiliate. Preferred 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 Preferred 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 Preferred 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. "Preferred Securities" means the Preferred Securities of the Trust each representing an undivided beneficial interest in the assets of the Trust, having a Liquidation Amount of $ per Preferred 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. "Preferred Securities Certificate" means a certificate evidencing ownership of Preferred Securities, substantially in the form attached as Exhibit B. "Preferred Securityholder" means a Person in whose name a Preferred Security or Preferred 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. "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. "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 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. "Relevant Trustee" has the meaning specified in Section 8.10. B-6 78 "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 Preferred 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 Preferred 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 . "Trust Indenture Act" has the meaning specified in Section 1.1 of the Indenture. "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 Preferred Securities Certificates. "Trust Security" means any one of the Common Securities or the Preferred Securities. "Trustees" means, collectively, the Property Trustee, the Delaware Trustee and the Administrative Trustees. "Underwriting Agreement" means the agreement dated as of among the Trust, the Depositor and . ARTICLE II CONTINUATION OF THE TRUST SECTION 2.1. Name. The Trust continued hereby shall be known as "Republic New York Capital ", 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), 1011 Centre Road, Suite 200, Wilmington, DE 19805-1266, Attention: Ms. Lisa Wilkins, or such other address B-7 79 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 Preferred Securities. The Preferred Securities to be issued will be limited to $ aggregate Liquidation Amount outstanding at any one time. On , the Depositor and the Administrative Trustees, on behalf of the Trust, and pursuant to the Original Declaration of Trust, and executed and delivered the Underwriting 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 accordance with Section 5.2 and delivered to , a Global Preferred Securities Certificate in book-entry form, registered in the name of the nominee of the initial Clearing Agency, in an aggregate amount of Preferred Securities having an aggregate Liquidation Amount of $ against receipt of the aggregate purchase price of such Preferred Securities equal to 100% of the Liquidation Amount multiplied by the number of Preferred 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 Common Securities having an aggregate Liquidation Amount of $ against payment by the Depositor of $ 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 $ , 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 $ . SECTION 2.6. Purpose; Appointment of Trustees. 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, (d) make distributions, and (e) engage in only those other activities necessary, advisable or incidental thereto such as registering the transfer of the Preferred Securities. 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 B-8 80 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: (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, provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided further that there shall be no interests in the Trust other than the Trust Securities, and issuance of the Trust Securities shall be limited to a one-time, simultaneous issuance of both Preferred Securities and Common Securities on the Closing Date.; (B) to cause the Trust to enter into, and to execute, deliver and perform on behalf of the Trust, the Underwriting 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 Preferred 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 Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor and the registration of the Preferred 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 acquire the Junior Subordinated Debt Securities and the Guarantee with the proceeds of the sale of the Preferred Securities and the Common Securities, provided, however, that the Administrative Trustees shall cause legal title to the Junior Subordinated Debt Securities to be held of record in the name of the Property Trustee for the benefit of the Holders of the Trust Securities; (I) 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; B-9 81 (J) 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 (K) 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: (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 B-10 82 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 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 Preferred 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 Preferred 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 Preferred 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 Preferred 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 Preferred 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 Underwriting Agreement providing for the sale of the Preferred Securities; and (vi) the taking of any other actions necessary or desirable to carry out any of the foregoing activities. (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 B-11 83 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. The Holders of the Trust Securities shall not have legal title to any part of the assets of the Trust, but shall have an undivided beneficial interest in the assets of the 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. 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 , 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 [annually, semi-annually, quarterly] in arrears on [ , , ] and of each year, commencing on . 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 B-12 84 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 % thereof, compounded [annually, semi-annually, quarterly] 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 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, [annual, 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 of % per annum, compounded [annually, semi-annually, quarterly]) from the relevant payment date for such Distributions, but not exceeding the interest rate then accruing on the Junior Subordinated Debt Securities. Each increase in Distribution, described in Section 4.1(c), is an "Additional Distribution". (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 legally 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 and . 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 Preferred Securities and the Common Securities on pro rata basis. The amount of premium, if any, paid by B-13 85 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 Preferred 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 numbers 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. (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 Preferred Securities are in book-entry-only form, irrevocably deposit with the Clearing Agency for the Preferred 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 Preferred 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 Preferred 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 Preferred 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. B-14 86 (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 Preferred 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 $ or an integral multiple of $ in excess thereof) of the Liquidation Amount of Trust Securities of a denomination larger than $ . 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 Preferred 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 Preferred 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 Preferred 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, Preferred 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 Preferred Securities have been cured, waived or otherwise eliminated. Until all such Events of Default under this Declaration of Trust with respect to the Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the Holders of the Preferred Securities and not on behalf of the Holder of the Common Securities, and only the Holders of the Preferred Securities will have the right to direct the Property Trustee to act on their behalf. SECTION 4.4. Payment Procedures. In the event Definitive Preferred Securities Certificates are issued, payments of Distributions (including Additional Distributions, if applicable) in respect of the Preferred 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 Preferred 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. B-15 87 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 Preferred 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. Execution of Trust Securities Certificates. 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. 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 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. B-16 88 SECTION 5.4. Restrictions on Transfer; Registration of Transfer and Exchange of Preferred Securities Certificates. Trust Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Declaration and in the Trust Securities. Any transfer or purported transfer of any Trust Security not made in accordance with this Declaration and the Trust Securities shall be null and void. Subject to this Article V, Preferred Securities shall be freely transferable. A transferee of a Trust Securities shall become a Securityholder, and shall be entitled to the rights and subject to the obligations of a Securityholder hereunder, upon due registration of such Trust Securities in such transferee's name pursuant to Sections 5.4, 5.11 and 5.13. 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 Preferred 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 Preferred 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 Preferred 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 Preferred Securities Certificates are issued, then upon surrender for registration of transfer of any Preferred 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 Preferred 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 Preferred Securities that have been called for redemption. In the event that Definitive Preferred Securities Certificates are issued, at the option of a Holder, Preferred Securities Certificates may be exchanged for other Preferred Securities Certificates in authorized denominations of the same class and of a like aggregate Liquidation Amount upon surrender of the Preferred Securities Certificates to be exchanged at the office or agency maintained pursuant to Section 5.8. Every Definitive Preferred 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 his attorney duly authorized in writing. Each Preferred 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 Preferred 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 Preferred Securities Certificates. 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 Trust 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 B-17 89 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 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 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 Preferred 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 B-18 90 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. SECTION 5.10. Ownership of Common Securities by Depositor. On the Closing Date, 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 or 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 Preferred Securities Certificates; Common Securities Certificate. (a) The Preferred Securities, upon original issuance, will be represented by one or more Preferred Securities in registered book-entry global form (the "Global Preferred Securities"), to be delivered to the Property Trustee as custodian for the initial Clearing Agency, by, or on behalf of, the Trust. Such Global Preferred 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 Preferred Securities Certificate representing such Owner's interest in such Global Preferred Securities, except as provided in Section 5.13. Unless and until Definitive Preferred 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 Preferred Securities (including the payment of the Liquidation Amount of and Distributions on the Global Preferred Securities and the giving of instructions or directions to Owners of Global Preferred Securities) as the sole Holder of Global Preferred Securities and shall have no obligations to the Owners thereof; (iii) the rights of the Owners of the Global Preferred 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 Preferred 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 Preferred Securities to such Clearing Agency Participants; (iv) the Global Preferred 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 Preferred Securities may not be exchanged for Preferred Securities in certificated form except as set forth in Section 5.13; and (v) interests in the Global Preferred 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. B-19 91 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 Preferred 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 Preferred 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 Preferred 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 Preferred 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 Preferred Security may be exchanged by or on behalf of the Clearing Agency for certificated Preferred 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 Preferred Securities and the other Trustees of the occurrence of any such event and of the availability of the Definitive Preferred Securities Certificates to Owners of such class or classes, as applicable, requesting the same. Upon surrender to the Administrative Trustees of the Preferred Securities Certificate or Certificates representing the Global Preferred Securities Certificates by the Clearing Agency, accompanied by registration instructions, the Administrative Trustees, or any one of them, shall execute the Definitive Preferred 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 Preferred Securities Certificates, the Trustees shall recognize the Holders of the Definitive Preferred Securities Certificates as Securityholders. The Definitive Preferred 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 Preferred 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 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 B-20 92 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 Preferred 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 Preferred 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 Preferred 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 Preferred Securities may, on behalf of the Holders of all the Preferred 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 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 Preferred Securities all or part of which is represented by Global Preferred Securities, a record date shall be established for determining Holders of Outstanding Preferred 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 automati- B-21 93 cally 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 Preferred 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 Preferred 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 Preferred Securities of such Holder (a "Direct Action"). Except as set forth in Sections 5.14(b) and 5.14(c), the Holders of Preferred 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 Preferred 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 Preferred 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 Preferred 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. (b) So long as any Junior Subordinated Debt Securities are held by the Property 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 Preferred 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 Preferred Securities. The Trustees shall not revoke any action previously authorized or approved by a vote of the Holders of Preferred Securities, except by a subsequent vote of the Holders of Preferred Securities. The Property Trustee shall notify all Holders of the Preferred 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 Preferred 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 B-22 94 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. 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 $ 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. B-23 95 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 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 B-24 96 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. 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). B-25 97 (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. (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. 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. (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 B-26 98 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 8.1(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 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 B-27 99 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). (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 rerecording, 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 B-28 100 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 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. B-29 101 SECTION 8.6. Compensation, Indemnity, Fees. Pursuant to Section 10.6 of the Indenture, the Depositor 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 (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. B-30 102 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. (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 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. B-31 103 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 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 Preferred 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 B-32 104 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 have occurred and be continuing, the Preferred Securityholders, by Act of the Preferred Securityholders of a majority in Liquidation Amount of the Preferred 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 Preferred 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 in such amendment shall constitute such Relevant Trustees co-trustees if the same trust and that each such B-33 105 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; 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, B-34 106 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. (a) Within 60 days after May 15 of each year or at such other time as required under (S) 313(b) of the Trust Indenture Act, 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. 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. Each of the Depositor and the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such evidence of 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 B-35 107 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 November 18, 2051 (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 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 Preferred 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 B-36 108 (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 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 B-37 109 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 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 Preferred Securities, except that, if a Debenture Event of Default has occurred and is continuing, the Preferred 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 Preferred 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 Preferred Securities or (b) substitutes for the Preferred Securities other securities having substantially the same terms as the Preferred Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Preferred 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 Preferred Securities are then listed or traded, if any, (iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Preferred 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 Preferred 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 Preferred 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, B-38 110 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. 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 Preferred 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; provided, however, that in the case of clause (i), such action shall not adversely effect in any material respect the interests of any Securityholder, and any amendments to 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 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. B-39 111 (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. 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. B-40 112 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 Preferred Securityholder, to such Preferred 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 Preferred 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), 1011 Centre Road, Suite 200, Wilmington, DE 19805-1266, 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, 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 be qualified under the Trust Indenture Act. This Declaration of Trust incorporates certain provisions of the Trust Indenture Act. (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, B-41 113 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. REPUBLIC NEW YORK CORPORATION, Depositor By: ------------------------------------ Name: Title: BANKERS TRUST COMPANY, as Property Trustee By: ------------------------------------ Name: Title: B-42 114 BANKERS TRUST (DELAWARE), as Delaware Trustee and not in its individual capacity By: ------------------------------------ Name: Title: Thomas F. Robards, as Administrative Trustee Stephen Saali, as Administrative Trustee B-43 115 EXHIBIT A CERTIFICATE OF TRUST OF REPUBLIC NEW YORK CAPITAL THIS CERTIFICATE OF TRUST of Republic New York Capital (the "Trust"), dated as of , 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. The name of the business trust formed hereby is Republic New York Capital . 2. The name and business address of the trustee of the Trust which has its principal place of business in the State of Delaware are as follows: Bankers Trust (Delaware) 1011 Centre Road, Suite 200, Wilmington, DE 19805-1266. 3. This Certificate of Trust shall be effective upon filing with the Secretary of State. 4. The Trust created hereby shall terminate on . 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 -------------------------------------- B-44 116 EXHIBIT B IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT -- This Preferred 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 Preferred Security is exchangeable for Preferred 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 Preferred Security (other than a transfer of this Preferred 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 Preferred Security is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York) to Republic New York Capital or its agent for registration of transfer, exchange or payment, and any Preferred 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 PREFERRED SECURITIES CUSIP NO. [ ] CERTIFICATE EVIDENCING PREFERRED SECURITIES OF REPUBLIC NEW YORK CAPITAL [NAME OF ISSUE] (LIQUIDATION AMOUNT $ PER PREFERRED SECURITY) Republic New York Capital , 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 ( ) Preferred Securities of the Trust representing an undivided beneficial interest in the assets of the Trust and designated Republic New York Capital [Name of issue] (Liquidation Amount $ per Preferred Security) (the "Preferred Securities"). The Preferred 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 Preferred Securities are set forth in, and this certificate and the Preferred 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 , as the same may be amended from time to time (the "Declaration of Trust") including the designation of the terms of Preferred 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 , (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. B-45 117 IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed this certificate this day of , . Republic New York Capital ------------------------------------------------------ By: -------------------------------------- Name: Administrative Trustee COUNTERSIGNED AND REGISTERED: BANKERS TRUST COMPANY, as Transfer Agent and Registrar By: -------------------------------------- Authorized Signatory B-46 118 ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred 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 Preferred 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 Preferred 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. B-47 119 EXHIBIT C THIS CERTIFICATE IS NOT TRANSFERABLE CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES CERTIFICATE EVIDENCING COMMON SECURITIES OF REPUBLIC NEW YORK CAPITAL % COMMON SECURITIES (LIQUIDATION AMOUNT $ PER COMMON SECURITY) Republic New York Capital , 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 $ per Common Security) (the "Common Securities"). Except as set forth in 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 , , 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 , . REPUBLIC NEW YORK CAPITAL By: -------------------------------------- Name: Administrative Trustee COUNTERSIGNED AND REGISTERED: BANKERS TRUST COMPANY, as Transfer Agent and Registrar By: ------------------------------------ Authorized Signatory B-48 120 ANNEX C ================================================================================ FORM OF GUARANTEE AGREEMENT BETWEEN REPUBLIC NEW YORK CORPORATION (AS GUARANTOR) AND BANKERS TRUST COMPANY (AS TRUSTEE) DATED AS OF - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 121 CROSS-REFERENCE TABLE*
SECTION OF SECTION OF TRUST INDENTURE ACT GUARANTEE OF 1939, AS AMENDED 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. 122 TABLE OF CONTENTS
PAGE ---- ARTICLE I. DEFINITIONS............................................................... C-1 SECTION 1.1. Definitions....................................................... C-1 ARTICLE II. TRUST INDENTURE ACT...................................................... C-4 SECTION 2.1. Trust Indenture Act; Application.................................. C-4 SECTION 2.2. List of Holders................................................... C-4 SECTION 2.3. Reports by the Guarantee Trustee.................................. C-4 SECTION 2.4. Periodic Reports to Guarantee Trustee............................. C-4 SECTION 2.5. Evidence of Compliance with Conditions Precedent.................. C-4 SECTION 2.6. Events of Default; Waiver......................................... C-5 SECTION 2.7. Event of Default; Notice.......................................... C-5 SECTION 2.8. Conflicting Interests............................................. C-5 ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE...................... C-5 SECTION 3.1. Powers and Duties of the Guarantee Trustee........................ C-5 SECTION 3.2. Certain Rights of Guarantee Trustee............................... C-6 SECTION 3.3. Indemnity......................................................... C-7 SECTION 3.4. Expenses.......................................................... C-8 ARTICLE IV. GUARANTEE TRUSTEE........................................................ C-8 SECTION 4.1. Guarantee Trustee; Eligibility.................................... C-8 SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee..... C-8 ARTICLE V. GUARANTEE................................................................. C-9 SECTION 5.1. Guarantee......................................................... C-9 SECTION 5.2. Waiver of Notice and Demand....................................... C-9 SECTION 5.3. Obligations Not Affected.......................................... C-9 SECTION 5.4. Rights of Holders................................................. C-10 SECTION 5.5. Guarantee of Payment.............................................. C-10 SECTION 5.6. Subrogation....................................................... C-10 SECTION 5.7. Independent Obligations........................................... C-10 ARTICLE VI. COVENANTS AND SUBORDINATION.............................................. C-10 SECTION 6.1. Subordination..................................................... C-10 SECTION 6.2. Pari Passu Guarantees............................................. C-10 ARTICLE VII. TERMINATION............................................................. C-11 SECTION 7.1. Termination....................................................... C-11 ARTICLE VIII. MISCELLANEOUS.......................................................... C-11 SECTION 8.1. Successors and Assigns............................................ C-11 SECTION 8.2. Amendments........................................................ C-11 SECTION 8.3. Notices........................................................... C-11 SECTION 8.4. Benefit........................................................... C-12 SECTION 8.5. Interpretation.................................................... C-12 SECTION 8.6. Governing Law..................................................... C-13
C-i 123 GUARANTEE AGREEMENT This GUARANTEE AGREEMENT, dated as of -, 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 , a Delaware statutory business trust (the "Issuer"). WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Declaration of Trust"), dated as of , 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 $ aggregate Liquidation Amount of its Preferred Securities, Liquidation Amount $ per security (the "Preferred Securities") and $ of aggregate Liquidation Amount of Common Securities, liquidation preference $ per security (the "Common Securities" and collectively with the Preferred Securities (as defined herein), the "Trust Securities") representing undivided beneficial ownership interests in the assets of the Issuer and having the terms set forth in the Declaration of Trust; and WHEREAS, the Trust Securities were issued by the Issuer and the proceeds thereof were used to purchase the Junior Subordinated Debt Securities due (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, on , 1997, the Guarantor and the Issuer filed a registration statement (the "Registration Statement") with the Securities and Exchange Commission under the Securities Act of 1933, as amended, pursuant to which the Preferred Securities and the Junior Subordinated Debt Securities and this Guarantee were registered; 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 securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. C-1 124 "Common Securities" shall have the meaning specified in the first recital of this Guarantee Agreement. "Debt" means, with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent, (i) the principal of and premium, if any, and unpaid interest on indebtedness for money borrowed, (ii) purchase money and similar obligations, (iii) obligations under capital leases, (iv) guarantees, assumptions or purchase commitments relating to, or other transactions as a result of which the Guarantor is responsible for the payment of, such indebtedness of others, (v) renewals, extensions and refunding of any such indebtedness, (vi) interest or obligations in respect of any such indebtedness accruing after the commencement of any insolvency or bankruptcy proceedings and (vii) obligations associated with derivative products such as interest rate and currency exchange contracts, foreign exchange contracts, commodity contracts and similar arrangements. "Declaration of Trust" means the Amended and Restated Declaration of Trust, dated , executed by the Guarantor, as Depositor, Bankers Trust (Delaware), as Delaware Trustee, Bankers Trust Company, as Property Trustee, and the Administrative Trustees named therein. "Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Guarantee Agreement; provided, however, that, except with respect to a default in payment of any Guarantee Payment, the Guarantor shall have received notice of default and shall not have cured such default within 60 days after receipt of such notice. "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Trust Securities, to the extent not paid or made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as defined in the Declaration of Trust) required to be paid on the Trust Securities, to the extent the Issuer shall have funds on hand available therefor at such time, (ii) the redemption price, including all accrued and unpaid Distributions to the date of redemption (the "Redemption Price"), with respect to the Trust Securities called for redemption by the Issuer to the extent the Issuer shall have funds on hand available therefor at such time, and (iii) upon a voluntary or involuntary termination, winding-up or liquidation of the Issuer, unless Junior Subordinated Debt Securities are distributed to the Holders, the lesser of (a) the aggregate of the liquidation preference of $ 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. "Guarantor" shall have the meaning specified in the first recital of this Guarantee Agreement. "Holder" means any holder, as registered on the books and records of the Issuer, of any Trust Securities; provided, however, that in determining whether the holders of the requisite percentage of Trust Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the Guarantee Trustee. "Indenture" means the Junior Subordinated Indenture dated as of November 27, 1996, between the Guarantor and Bankers Trust Company, as trustee as supplemented and amended. "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). C-2 125 "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. "Preferred Securities" shall have the meaning specified in the fourth recital of this Guarantee Agreement. "Responsible Officer" when used with respect to the Guarantee Trustee means any officer assigned to the Corporate Trust Office, including any managing director, vice president, assistant vice president, assistant treasurer, assistant secretary or any other officer of the Guarantee Trustee customarily performing functions similar to those performed by any of the above designated officers and having direct responsibility for the administration of this Guarantee Agreement, and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject. "Senior Debt" means the principal of (and premium, if any) and interest, if any (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Guarantor whether or not such claim for post-petition interest is allowed in such proceeding), on Debt, whether incurred on or prior to the date of this Guaranty Agreement or thereafter incurred, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligations are not superior in right of payment to the Trust Securities or to other Debt which is pari passu with, or subordinated to, the Trust Securities; provided, however, that Senior Debt shall not be deemed to include (a) any Debt of the Guarantor which, when incurred and without respect to any election under Section 1111(b) of the United States Bankruptcy Code of 1978, as amended, was without recourse to the Guarantor, (b) any Debt of the Guarantor to any of its Subsidiaries, (c) any Debt to any employee of the Guarantor, (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 Agreement. C-3 126 "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. sec.sec. 77aaa-77bbbb), as amended. "Trust Securities" shall have the meaning specified in the first recital of this Guarantee Agreement. ARTICLE II. TRUST INDENTURE ACT SECTION 2.1. Trust Indenture Act; Application. (a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are required to be part of the Guarantee Agreement and shall, to the extent applicable, be governed by such provisions. (b) If and to the extent that, any provision of this Guarantee Agreement limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. SECTION 2.2. List of Holders. (a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (i) semiannually, on or before and of each year, a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders") as of a date not more than 15 days prior to the delivery thereof, and (ii) at such other times as the Guarantee Trustee may request in writing, within 30 days after the receipt by the Guarantor of any such request, a List of Holders as of a date not more than 15 days prior to the time such list is furnished, in each case to the extent such information is in the possession or control of the Guarantor and is not identical to a previously supplied list of Holders or has not otherwise been received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Guarantee Trustee shall comply with its obligations under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act. SECTION 2.3. Reports by the Guarantee Trustee. Not later than [July 15] of each year, commencing [July 15, ], the Guarantee Trustee shall provide to the Holders such reports, if any, as are required by Section 313 of the Trust Indenture Act 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 C-4 127 set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate. SECTION 2.6. Events of Default; Waiver. The Holders of a Majority in Liquidation Amount of the Trust Securities may, by vote, on behalf of the Holders, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent therefrom. SECTION 2.7. Event of Default; Notice. (a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default, transmit by mail, first class postage prepaid, to the Holders, notice of all Events of Default known to the Guarantee Trustee, unless such Events of Default have been cured before the giving of such notice; provided, that, except in the case of a default in the payment of a Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as the Board of Directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders. (b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless a Responsible Officer charged with the administration of the Declaration of Trust shall have received written notice of such Event of Default. SECTION 2.8. Conflicting Interests. The Declaration of Trust shall be deemed to be specifically described in this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act. ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE SECTION 3.1. Powers and Duties of the Guarantee Trustee. (a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except a Holder exercising his or her rights pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall automatically vest in any Successor Guarantee Trustee upon acceptance by such Successor Guarantee Trustee of its appointment hereunder, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee. (b) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the Holders. (c) The Guarantee Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Guarantee Agreement, and no implied covenants shall be read into this Guarantee Agreement against the Guarantee Trustee. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. C-5 128 (d) No provision of this Guarantee Agreement shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee Agreement, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee Agreement; and (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee Agreement; but in the case of any such certificates or opinions that by any provision hereof or of the Trust Indenture Act are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee Agreement; (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in Liquidation Amount of the Trust Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; and (iv) no provision of this Guarantee Agreement shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not assured to it under the terms of this Guarantee Agreement or indemnity satisfactory to it against such risk or liability is not reasonably assured to it. SECTION 3.2. Certain Rights of Guarantee Trustee. (a) Subject to the provisions of Section 3.1: (i) The Guarantee Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (ii) Any direction or act of the Guarantor contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officers' Certificate unless otherwise prescribed herein. (iii) Whenever, in the administration of this Guarantee Agreement, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting to take any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request from the Guarantee Trustee, shall be promptly delivered by the Guarantor. C-6 129 (iv) The Guarantee Trustee may consult with legal counsel, and the advice or written opinion of such legal counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or opinion. Such legal counsel may be legal counsel to the Guarantor or any of its Affiliates and may be one of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Guarantee Agreement from any court of competent jurisdiction. (v) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee Agreement at the request or direction of any Holder, unless such Holder shall have provided to the Guarantee Trustee such security and indemnity reasonably satisfactory to it against the costs, expenses (including attorneys' fees and expenses) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee; provided, that nothing contained in this Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Guarantee Agreement. (vi) The Guarantee Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. (vii) The Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder. (viii) Whenever in the administration of this Guarantee Agreement the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request instructions from the Holders, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (C) shall be fully protected in acting in accordance with such instructions. (b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty to act in accordance with such power and authority. SECTION 3.3. Indemnity. The Guarantor agrees to indemnify the Guarantee Trustee and its directors, officers, agents and employees for, and to hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Guarantee Trustee, arising out of or in connection with the acceptance or administration of this Guarantee Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Guarantee Trustee will not claim or exact any lien or charge on any Guarantee Payments as a result of any amount due to it under this Guarantee Agreement. This indemnity shall survive the termination of this Guarantee Agreement or the resignation or removal of the Guarantee Trustee. C-7 130 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 the Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee. (a) Subject to Section 4.2(b), in the absence of the existence of an Event of Default, the Guarantee Trustee may be appointed or removed without cause at any time by the Guarantor. (b) The Guarantee Trustee shall not be removed until a Successor Guarantee Trustee has been appointed and has accepted such appointment by a written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor. (c) The Guarantee Trustee appointed hereunder shall hold office until a Successor Guarantee Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor Guarantee Trustee has been appointed and has accepted such appointment by an instrument in writing executed by such Successor Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee Trustee. (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.2 within 60 days after delivery to the Guarantor of an instrument of resignation, the resigning Guarantee Trustee may petition, at the expense of the Guarantor, any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee. C-8 131 ARTICLE V. GUARANTEE SECTION 5.1. Guarantee. The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Issuer), as and when due, regardless of any defense, right of set-off or counterclaim which the Issuer may have or assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer to pay such amounts to the Holders. The Guarantor shall give prompt written notice to the Guarantee Trustee in the event it makes any direct payment hereunder. SECTION 5.2. Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of the Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Guarantee Trustee, the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. SECTION 5.3. Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer of any express or implied agreement, covenant, term or condition relating to the Trust Securities to be performed or observed by the Issuer; (b) the extension of time for the payment by the Issuer of all or any portion of the Distributions (other than an extension of time for payment of Distributions that results from the extension of any interest payment period on the Junior Subordinated Debt Securities as so provided in the Indenture), Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Trust Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Trust Securities; (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Trust Securities, or any action on the part of the Issuer granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer; (e) any invalidity of, or defect or deficiency in, the Trust Securities; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Holders to give notice to, or obtain the consent of, the Guarantor with respect to the happening of any of the foregoing. C-9 132 SECTION 5.4. Rights of Holders. The Guarantor expressly acknowledges that: (i) this Guarantee Agreement will be deposited with the Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in Liquidation Amount of the Trust Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement and (iv) any Holder may institute a legal proceeding directly against the Guarantor to enforce its rights under this Guarantee Agreement, without first instituting a legal proceeding against the Issuer or any other Person. SECTION 5.5. Guarantee of Payment. This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee Agreement will not be discharged except by payment of the Guarantee Payments in full (without duplication of amounts theretofore paid by the Issuer) or upon distribution of Junior Subordinated Debt Securities to Holders as provided in the Declaration of Trust. SECTION 5.6. Subrogation. The Guarantor shall be subrogated to all (if any) rights of the Holders against the Issuer in respect of any amounts paid to the Holders by the Guarantor under this Guarantee Agreement and shall have the right to waive payment by the Issuer pursuant to Section 5.1; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights which it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement if, at the time of any such payment any amounts are due and unpaid under this Guarantee Agreement. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders. SECTION 5.7. Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Trust Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof. 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 II and Republic New York Capital ]. C-10 133 ARTICLE VII. TERMINATION SECTION 7.1. Termination. This Guarantee Agreement shall terminate and be of no further force and effect upon (i) full payment of the Redemption Price of all Trust Securities, (ii) the distribution of Junior Subordinated Debt Securities to the Holders in exchange for all of the Trust Securities or (iii) full payment of the amounts payable in accordance with the Declaration of Trust upon liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the case may be, if at any time any Holder must repay any sums paid with respect to Trust Securities or this Guarantee Agreement. ARTICLE VIII. MISCELLANEOUS SECTION 8.1. Successors and Assigns. All guarantees and agreements contained in this Guarantee Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Trust Securities then outstanding. Except in connection with a consolidation, merger or sale involving the Guarantor that is permitted under Article VIII of the Indenture and pursuant to which the assignee agrees in writing to perform the Guarantor's obligations hereunder, the Guarantor shall not assign its obligations hereunder. SECTION 8.2. Amendments. Except with respect to any changes which do not adversely affect the rights of the Holders in any material respect (in which case no consent of the Holders will be required), this Guarantee Agreement may only be amended with the prior approval of the Holders of not less than a Majority in Liquidation Amount of all the outstanding Trust Securities. The provisions of Article VI of the Declaration of Trust concerning meetings of the Holders shall apply to the giving of such approval. 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 c/o Republic New York Corporation 452 Fifth Avenue C-11 134 New York, NY 10018 Facsimile No.: (212) 525-6875 Attention: Treasurer with a copy to: Bankers Trust Company Four Albany Street -- 4(th) 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 -- 4(th) Floor New York, NY 10006 Facsimile No.: (212) 250-6961 Attention: Corporate Trust and Agency Group Corporate Market Services (d) if given to any Holder, at the address set forth on the books and records of the Issuer. All notices hereunder shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. SECTION 8.4. Benefit. This Guarantee Agreement is solely for the benefit of the Holders and is not separately transferable from the Trust Securities. SECTION 8.5. Interpretation. In this Guarantee Agreement, unless the context otherwise requires: (a) capitalized terms used in this Guarantee Agreement but not defined in the preamble hereto have the respective meanings assigned to them in Section 1.1; (b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout; (c) all references to "the Guarantee Agreement" or "this Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented or amended from time to time; (d) all references in this Guarantee Agreement to Articles and Sections are to Articles and Sections of this Guarantee Agreement unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee Agreement unless otherwise defined in this Guarantee Agreement or unless the context otherwise requires; (f) a reference to the singular includes the plural and vice versa; and (g) the masculine, feminine or neuter genders used herein shall include the masculine, feminine and neuter genders. C-12 135 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. THIS GUARANTEE AGREEMENT is executed as of the day and year first above written. REPUBLIC NEW YORK CORPORATION By: ------------------------------------ Name: Title: BANKERS TRUST COMPANY, as Guarantee Trustee By: ------------------------------------ Name: Title: C-13 EX-5.1 5 OPINION AND CONSENT OF WILLIAM F. ROSENBLUM, JR. 1 Exhibit 5.1 [Letterhead of Republic New York Corporation] December 29, 1997 To the Board of Directors of Republic New York Corporation Ladies and Gentlemen: This opinion is furnished to you in connection with the Registration Statement on Form S-3 filed on December 16, 1997 with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "Registration Statement") registering up to $1,000,000,000 of securities of Republic New York Corporation, a Maryland corporation (the "Company"), and of Republic New York Capital III, a Delaware statutory business trust, and Republic New York Capital IV, a Delaware statutory business trust, (each a "Trust" and, collectively, the "Trusts") (Registration Numbers 333-42421, 333-42421-01 and 333-42421-02, respectively). The Registration Statement also includes an additional $125,000,000 of securities of the Company available from previous registration statements (Registration Numbers 33-48651 and 33-49507). Pursuant to the Registration Statement, the Company may offer from time to time, together or separately: (a) senior unsecured debt securities of the Company (the "Senior Securities") to be issued from time to time under an Indenture, dated as of May 15, 1986, as supplemented by a First Supplemental Indenture, dated as of May 15, 1991, and by a Second Supplemental Indenture, dated as of April 15, 1993, between the Company and Citibank, N.A., as trustee (the "Senior Indenture"); (b) subordinated unsecured debt securities of the Company (the "Subordinated Securities") to be issued from time to time under either an Indenture, dated as of May 15, 1986, as supplemented by a First Supplemental Indenture, dated as of May 15, 1991, and by a Second Supplemental Indenture, dated as of April 15, 1993, between the Company and Citibank, N.A., as trustee (the "1986 Subordinated Indenture") or a separate Indenture, dated as of October 15, 1992, as supplemented by a First Supplemental Indenture, dated as of April 15, 1993, between the Company and Citibank, N.A., as trustee (the "1992 Subordinated Indenture"); 2 2 (c) junior subordinated unsecured debt securities of the Company (the "Junior Subordinated Debt Securities" and together with the Senior Securities and the Subordinated Securities being referred to herein collectively as the "Debt Securities") to be issued from time to time under an Indenture, dated as of December 15, 1997, between the Company and Bankers Trust Company, as trustee (the "Junior Subordinated Indenture") (the Senior Indenture, 1986 Subordinated Indenture, 1992 Subordinated Indenture and Junior Subordinated Indenture being referred to collectively as the "Indentures"); (d) debt warrants of the Company authorizing the holder to acquire Senior Securities or Subordinated Securities ("Debt Warrants") to be issued from time to time under warrant agreements, substantially in the form of Exhibits 4.11 or 4.12 to the Registration Statement (each, a "Debt Warrant Agreement"), between the Company and a warrant agent (each, a "Debt Warrant Agent"); (e) currency warrants of the Company entitling the holder to receive the cash value of the right to purchase or sell a foreign currency or a composite currency ("Currency Warrants") to be issued from time to time under a warrant agreement, substantially in the form of Exhibit 4.13 to the Registration Statement (the "Currency Warrant Agreement"), between the Company and a warrant agent (the "Currency Warrant Agent"); (f) stock-index warrants of the Company entitling the holder to receive an amount in cash determined by reference to increases or decreases in the level of a specified stock index which may be based on one or more U.S. or foreign stocks or a combination thereof ("Stock-Index Warrants") to be issued from time to time under a warrant agreement, substantially in the form of Exhibit 4.14 to the Registration Statement (the "Stock-Index Warrant Agreement"), between the Company and a warrant agent (the "Stock-Index Warrant Agent"); (g) other warrants of the Company entitling the holder to receive an amount in cash determined by reference to increases or decreases in the level of other items or indices ("Other Warrants") to be issued from time to time under a warrant agreement, substantially in the form of Exhibit 4.15 to the Registration Statement (the "Other Warrant Agreement"), between the Company and a warrant agent (the "Other Warrant Agent"); (h) shares of preferred stock, without par value, of the Company (the "Preferred Stock"); (i) depositary receipts (the "Depositary Receipts") for depositary shares of the Company (the "Depositary Shares") representing an interest in shares of Preferred Stock of the Company to be issued under a Deposit Agreement, substantially in the form of Exhibit 4.19 to the Registration Statement (the "Deposit Agreement"), between the Company and a U.S. bank or trust company, as depositary (the "Depositary"); (j) warrants of the Company entitling the holder to purchase a number of shares of Preferred Stock of the Company (the "Preferred Stock Warrants") to be issued from time to time under a warrant agreement, substantially in the form of Exhibit 4.17 to the Registration Statement (the "Preferred Stock Warrant Agreement"), between the Company and a warrant agent (the "Preferred Stock Warrant Agent"); (k) shares of common stock, $5.00 par value, of the Company (the "Common Stock"); and 3 3 (l) warrants of the Company entitling the holder to purchase a number of shares of Common Stock of the Company (the "Common Stock Warrants") to be issued from time to time under a warrant agreement, substantially in the form of Exhibit 4.16 to the Registration Statement (the "Common Stock Warrant Agreement" and together with the Debt Warrant Agreement, the Currency Warrant Agreement, the Stock-Index Warrant Agreement, the Other Warrant Agreement and the Preferred Stock Warrant Agreement being referred to herein collectively as the "Warrant Agreements" and individually as a "Warrant Agreement"), between the Company and a warrant agent (the "Common Stock Warrant Agent" and together with the Debt Warrant Agent, the Currency Warrant Agent, the Stock-Index Warrant Agent, the Other Warrant Agent and the Preferred Stock Warrant Agent being referred to herein collectively as the "Warrant Agents" and individually as a "Warrant Agent"). The Debt Warrants, Currency Warrants, Stock-Index Warrants, Other Warrants, Preferred Stock Warrants and Common Stock Warrants are collectively referred to herein as the "Warrants". The Debt Securities, Warrants, shares of Preferred Stock, Depositary Shares and shares of Common Stock are collectively referred to herein as the "Company Securities". Debt Securities may be convertible into shares of Preferred Stock or Common Stock. Preferred Stock may be convertible into shares of Common Stock or exchangeable for Debt Securities. Pursuant to the Registration Statement, the Trusts may offer from time to time, preferred securities (the "Trust Preferred Securities"). The Company will be the owner of the trust interests represented by common securities (together with the Trust Preferred Securities, the "Trust Securities") to be issued by each Trust. The payment of distributions and payments on account of the liquidation of a Trust or redemption of the Trust Securities issued by each such Trust will be guaranteed on a subordinated basis by the Company to the extent described in the Prospectus and in any applicable Prospectus Supplements (the "Guarantees"). Unless indicated otherwise in a Prospectus Supplement, each Trust exists for the sole purposes of issuing the Trust Securities, investing the proceeds thereof in Junior Subordinated Debt Securities of the Company and making distributions. The Trust Securities and the Company Securities are collectively referred to herein as the "Offered Securities". As Senior Vice President and Deputy General Counsel of the Company and as Senior Vice President and Senior Deputy General Counsel of the Company's principal subsidiary, Republic National Bank of New York (the "Bank"), I have been involved in the corporate proceedings of the Company relating to the proposed issuance and sale of the Offered Securities, including the preparation of the Registration Statement and the prospectus contained therein. For the purposes of this opinion, I have examined the charter and by-laws of the Company and the charter and by-laws of the Bank. In addition, I have examined the originals, or copies identified to my satisfaction, of all such corporate records and other documents relating to each of the foregoing entities and have satisfied myself as to such other matters as I have deemed necessary and relevant in order to render this opinion. In addition, I have referred to the legal opinions of Maryland counsel mentioned below and have had oral conferences with such officers of the Company and the Bank as I have deemed 4 4 necessary and relevant with respect to material factual matters which have not been independently established by me. Based upon the foregoing and having regard for such legal considerations as I deem relevant, I am of the opinion that: (1) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Maryland; (2) Each Indenture constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms, and when appropriate corporate action has been taken to fix the terms of one or more issues of the Debt Securities under the applicable Indenture and to authorize their issuance and sale, and when the Debt Securities with the terms so fixed shall have been duly authenticated under the applicable Indenture, and issued and sold in accordance with such corporate action, such Debt Securities will constitute legal, valid and binding obligations of the Company entitled to the benefits provided by the applicable Indenture. (3) When and if any Debt Securities that have been issued in accordance with paragraph 2 or paragraph 4 have been surrendered to the Company for conversion in accordance with the applicable Indenture, as amended to such date, and the shares of Common Stock or Preferred Stock, as the case may be, so issuable upon such conversion have been validly issued or delivered from shares of Common Stock duly authorized and reserved therefor by appropriate corporate action, or from shares of Preferred Stock duly authorized and reserved therefor after appropriate corporate and other action has been taken in accordance with paragraph 5, as the case may be, such shares of Common Stock or Preferred Stock will be validly issued, fully paid and nonassessable. (4) When appropriate corporate action has been taken to authorize the Company to execute and deliver a Debt Warrant Agreement or Agreements, to fix the terms of one or more issues thereunder of Debt Warrants and to authorize their issue, and such Debt Warrant Agreement or Agreements shall have been duly executed and delivered by the Company and the Debt Warrant Agent, and when Debt Warrants with terms so fixed shall have been duly countersigned by the Debt Warrant Agent and duly issued under the respective Debt Warrant Agreement in accordance with such corporate action, such Debt Warrants shall constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, and Debt Securities issuable upon exercise of such Debt Warrants, when duly authorized by appropriate corporate action and authenticated under the applicable Indenture, and when paid for in accordance with the terms of the applicable Debt Warrants, will constitute legal, valid and binding obligations of the Company entitled to the benefits provided by the applicable Indenture. (5) When appropriate corporate action has been taken to authorize the issuance and fix the terms of one or more issues of Preferred Stock and when Articles Supplementary or Articles of Amendment with respect to the particular class or series of Preferred Stock to be issued have been accepted for record by the Department of Assessments and Taxation of the State of Maryland (the "Department"), such shares 5 5 of Preferred Stock will have been duly authorized and, when issued and sold as described in the prospectus included in the Registration Statement as it may at any time be amended, and in any prospectus supplement relating thereto, pursuant to and in a manner consistent with such authorization, such shares of Preferred Stock will be validly issued, fully paid and nonassessable. (6) When and if any shares of Preferred Stock that have been issued in accordance with paragraph 5 or paragraph 12 have been surrendered to the Company for conversion or exchange and the shares of Common Stock or Debt Securities, as the case may be, so issuable upon such conversion or exchange have been duly issued or delivered from shares of Common Stock duly authorized and reserved therefor by appropriate corporate action, or from Debt Securities duly authorized and the terms of which have been fixed by appropriate corporate action and authenticated under the applicable Indenture, as the case may be, such shares of Common Stock will be validly issued, fully paid and nonassessable and such Debt Securities will constitute legal, valid and binding obligations of the Company entitled to the benefits provided by the applicable Indenture. (7) When appropriate corporate action has been taken to authorize the issuance of Common Stock, such shares of Common Stock will have been duly authorized and, when issued and sold as described in the prospectus included in the Registration Statement as it may at any time be amended, and in any prospectus supplement relating thereto, pursuant to and in a manner consistent with such authorization, such shares of Common Stock will be validly issued, fully paid and nonassessable. (8) When appropriate corporate action has been taken to authorize the issuance and fix the terms of one or more series of Depositary Shares and the underlying Preferred Stock and to authorize the execution and delivery of the related Deposit Agreement, and when such Deposit Agreement shall have been duly executed and delivered by the Company and the Depositary, and upon the acceptance for record by the Department of Articles Supplementary with respect to the underlying Preferred Stock, such Depositary Shares and shares of underlying Preferred Stock will have been duly authorized and, when Depositary Receipts for such Depositary Shares and the Depositary Shares shall have been issued and sold as described in the prospectus included in the Registration Statement as it may at any time be amended, and in any prospectus supplement relating thereto, and in any manner consistent with such authorization, and when the underlying Preferred Stock shall have been validly issued after appropriate corporate action and other action has been taken in accordance with paragraph 5, such Depositary Shares will be validly issued and will entitle the holders thereof to the rights specified in the Depositary Receipts and the Deposit Agreement. (9) When appropriate corporate action has been taken to authorize the Company to execute and deliver a Currency Warrant Agreement or Agreements, to fix the terms of one or more issues thereunder of Currency Warrants and to authorize their issue, and such Currency Warrant Agreement or Agreements shall have been duly executed and delivered by the Company and the Currency Warrant Agent, and when Currency Warrants with terms so fixed shall have been duly 6 6 countersigned by the Currency Warrant Agent and duly issued under the respective Currency Warrant Agreement in accordance with such corporate action, such Currency Warrants shall constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms. (10) When appropriate corporate action has been taken to authorize the Company to execute and deliver a Stock-Index Warrant Agreement or Agreements, to fix the terms of one or more issues thereunder of Stock-Index Warrants and to authorize their issue, and such Stock-Index Warrant Agreement or Agreements shall have been duly executed and delivered by the Company and the Stock-Index Warrant Agent, and when Stock-Index Warrants with terms so fixed shall have been duly countersigned by the Stock-Index Warrant Agent and duly issued under the respective Stock-Index Warrant Agreement in accordance with such corporate action, such Stock-Index Warrants shall constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms. (11) When appropriate corporate action has been taken to authorize the Company to execute and deliver the Other Warrant Agreement or Agreements, to fix the terms of one or more issues thereunder of Other Warrants and to authorize their issue, and such Other Warrant Agreement or Agreements shall have been duly executed and delivered by the Company and the Other Warrant Agent, and when Other Warrants with terms so fixed shall have been duly countersigned by the Other Warrant Agent and duly issued under the respective Other Warrant Agreement in accordance with such corporate action, such Other Warrants shall constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms. (12) When appropriate corporate action has been taken to authorize the Company to execute and deliver a Preferred Stock Warrant Agreement or Agreements, to fix the terms of one or more issues thereunder of Preferred Stock Warrants and to authorize their issue, and such Preferred Stock Warrant Agreement or Agreements shall have been duly executed and delivered by the Company and the Preferred Stock Warrant Agent, and when Preferred Stock Warrants with terms so fixed shall have been duly countersigned by the Preferred Stock Warrant Agent and duly issued under the respective Preferred Stock Warrant Agreement in accordance with such corporate action, such Preferred Stock Warrants shall constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, and shares of Preferred Stock issuable upon exercise of such Preferred Stock Warrants, when duly authorized and reserved therefor after appropriate corporate and other action has been taken in accordance with paragraph 5, and when paid for in accordance with the terms of the Preferred Stock Warrants, will be validly issued, fully paid and nonassessable. (13) When appropriate corporate action has been taken to authorize the Company to execute and deliver a Common Stock Warrant Agreement or Agreements, to fix the terms of one or more issues thereunder of Common Stock Warrants and to authorize their issue, and such Common Stock Warrant Agreement or Agreements shall have been duly executed and delivered by the 7 7 Company and the Common Stock Warrant Agent, and when Common Stock Warrants with terms so fixed shall have been duly countersigned by the Common Stock Warrant Agent and duly issued under the respective Common Stock Warrant Agreement in accordance with such corporate action, such Common Stock Warrants shall constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, and shares of Common Stock issuable upon exercise of such Common Stock Warrants, when duly authorized and reserved for issuance therefor by appropriate corporate action, and when paid for in accordance with the terms of the Common Stock Warrants, will be validly issued, fully paid and nonassessable. The opinions set forth above are subject, as to enforcement of remedies, to (i) applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect, (ii) general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is considered in equity or at law and (iii) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars. I am an attorney admitted to practice in the State of New York and the opinions stated herein are limited to the laws of the United States and the State of New York. I have not made any independent investigation of the laws of the State of Maryland. Therefore, insofar as my opinion pertains to matters of Maryland law, I have relied upon the opinion of Piper & Marbury L.L.P. dated December 29, 1997. The opinion of Piper & Marbury L.L.P. is satisfactory in form and substance to me, and such firm is counsel of good standing whom I believe to be reliable. I hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement and to the use of my name therein. Very truly yours, /s/ William F. Rosenblum, Jr. William F. Rosenblum, Jr. EX-5.2 6 OPINION AND CONSENT OF POTTER ANDERSON & CORROON 1 Exhibit 5.2 [LETTERHEAD OF POTTER ANDERSON & CORROON] December 23, 1997 To Each of the Persons Listed on Schedule I Attached Hereto Re: Republic New York Capital III Republic New York Capital IV Trust Preferred Securities Ladies and Gentlemen: We have acted as special Delaware counsel for each of (i) Republic New York Capital III, a Delaware business trust ("Trust III"), and (ii) Republic New York Capital IV, a Delaware business trust ("Trust IV" and, together with Trust III, the "Trusts") in connection with the proposed issuance of their respective Preferred Securities (as to Trust III, the "Trust III Preferred Securities," and as to Trust IV, the "Trust IV Preferred Securities," and collectively, the "Preferred Securities") and the proposed issuance of their respective common securities (collectively, the "Common Securities"), each pursuant to a form of Amended and Restated Declaration of Trust (individually, the "Trust III Declaration" and the "Trust IV Declaration," respectively, and collectively, the "Declarations") to be entered into by and among Republic New York Corporation, as Depositor, Bankers Trust (Delaware), as Delaware Trustee, Bankers Trust Company, as Property Trustee, and the Administrative Trustees named therein. Initially capitalized terms used herein and not otherwise defined are used herein as defined in the Declarations. For purposes of giving the opinions hereinafter set forth, we have examined only the following documents and have conducted no independent factual investigations of our own: 1. The Certificate of Trust for Trust III, dated as of November 18, 1997, as filed in the Office of the Secretary 2 To each of the persons on Schedule I attached hereto December 23, 1997 Page 2 of State of the State of Delaware (the "Secretary of State") on November 19, 1997; 2. The original declaration trust of Trust III, dated as of November 18, 1997, by and among the Republic New York Corporation, as Depositor, Bankers Trust (Delaware), as Delaware Trustee and the Administrative Trustees named therein (the "Original Trust III Declaration"); 3. The registration statement on Form S-3 initially filed with the Securities and Exchange Commission on December 16, 1997, pursuant to the Securities Act of 1933, as amended, covering, among other securities, the Preferred Securities (the "Registration Statement"); 4. The Trust III Declaration; as referenced in, and attached to, the Registration Statement; 5. A Certificate of Good Standing for Trust III, dated December , 1997, obtained from the Secretary of State; 6. The Certificate of Trust for Trust IV, dated as of November 18, 1997, as filed with the Secretary of State on November 19, 1997; 7. The original declaration trust of Trust IV, dated as of November 18, 1997, by and among the Republic New York Corporation, as Depositor, Bankers Trust (Delaware), as Delaware Trustee and the Administrative Trustees named therein (the "Original Trust IV Declaration"); 8. The Trust IV Declaration, as referenced in, and attached to, the Registration Statement; and 9. A Certificate of Good Standing for Trust IV, dated December , 1997, obtained from the Secretary of State. The documents referred to in (2) through (4), (7) and (8), collectively referred to as the "Agreements" and individually as an "Agreement." As to certain facts material to the opinions expressed herein, we have relied upon the representations and warranties contained in the documents examined by us. Based upon the foregoing, and upon an examination of such questions of law of the State of Delaware as we have considered necessary or appropriate, and subject to the 3 To each of the persons on Schedule I attached hereto December 23, 1997 Page 3 assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that: 1. Each of Trust III and Trust IV has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act. 2. When (a) appropriate action has been taken to duly authorize the issuance and fix the terms of the Preferred Securities and the Common Securities under each of the Trust III Declaration and the Trust IV Declaration, respectively, and (b) the Declarations have been duly authorized, executed and delivered by the Company and the Trustees, respectively, the Declarations will constitute valid and binding obligations of the Company and the Trustees, respectively, enforceable against the Company and the Trustees, respectively, in accordance with their respective terms. 3. When and if (a) the issuance of the Preferred Securities and the Common Securities, respectively, has been duly authorized, (b) the terms of the Preferred Securities and the Common Securities, respectively, have been duly fixed, (c) the Declarations have been duly authorized, executed and delivered in accordance with paragraph 2 above, subject to the other qualifications set forth herein (including, without limitation, paragraph 4 below), the Trust III Preferred Securities and the Trust IV Preferred Securities, respectively, will have been duly authorized and when the Trust III Preferred Securities and the Trust IV Preferred Securities with the terms so fixed shall have been duly executed and authenticated under the applicable Declaration, and otherwise issued and sold in accordance with the applicable Declaration and the Registration Statement, and in a manner consistent therewith, such Trust III Preferred Securities and Trust IV Preferred Securities will be validly issued, fully paid, and non-assessable undivided beneficial interests in the assets of Trust III and Trust IV, as the case may be. 4. When and if the actions referred to in paragraphs 2 and 3 have occurred, the holders of Trust III Preferred Securities and Trust IV Preferred Securities, as beneficial owners of Preferred Securities of Trust III and Trust IV, respectively, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware, except that such holders of Trust III Preferred Securities and Trust IV Preferred Securities, as the case may be, may be obligated to (a) provide indemnity and/or security in connection with and pay taxes or 4 To each of the persons on Schedule I attached hereto December 23, 1997 Page 4 governmental charges arising from transfers or exchanges of any certificates representing such Preferred Securities (including the issuance of replacement certificates representing such Preferred Securities), and (b) provide security or indemnity in connection with requests of or directions to the Property Trustee of Trust III and Trust IV, as the case may be, to exercise such Property Trustee's rights and powers under the Trust III Declaration and the Trust IV Declaration, as the case may be. In addition to the assumptions and qualifications set forth above, all of the foregoing opinions contained herein are subject to the following assumptions, qualifications, limitations and exceptions: a. The foregoing opinions are limited to the laws of the State of Delaware presently in effect, excluding the securities laws thereof. We have not considered and express no opinion on the laws of any other jurisdiction, including, without limitation, federal laws and rules and regulations relating thereto. b. The foregoing opinions regarding the enforceability of the Declarations are subject to (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, fraudulent transfer and similar laws relating to or affecting creditors rights generally including, without limitation, the Delaware Uniform Fraudulent Conveyance Act, the provisions of the United States Bankruptcy Code and the Delaware insolvency statutes, (ii) principles of equity including, without limitation, concepts of materiality, good faith, fair dealing, conscionability and reasonableness (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) applicable law relating to fiduciary duties, and (iv) public policy limitations with respect to exculpation, contribution and indemnity provisions. c. We have assumed the due authorization, execution and delivery by each party listed as a party to each document examined by us. We have assumed further that each of such parties (exclusive of the Trusts to the limited extent set forth above) has the full corporate, trust, or banking, power, authority, and legal right to execute, deliver and perform each such document. We also have assumed that each of the parties to each of the Agreements (exclusive of the Trusts) is a corporation, bank, national banking association or trust company, validly existing and in good standing under the laws of their respective jurisdictions of organization. We have also assumed that the Agreements to which each of the parties 5 To each of the persons on Schedule I attached hereto December 23, 1997 Page 5 is a party do not result in the breach of the terms of, and do not contravene their respective constituent documents, any contractual restriction binding on them or any law, rule or regulation applicable to them. In addition, we have assumed the legal capacity of any natural persons who are parties to any of the documents examined by us. d. We have assumed that all signatures on documents examined by us are genuine, that all documents submitted to us as originals are authentic and that all documents submitted to us as copies conform with the originals. e. We have assumed that (i) with respect to Trust III, the Original Trust III Declaration, the Trust III Declaration, and the Agreements collectively, and (ii) with respect to Trust IV, the Original Trust IV Declaration, the Trust IV Declaration, and the Agreements collectively, constitute the entire agreement among each of the respective parties thereto with respect to the subject matter thereof, including with respect to the creation, operation, dissolution and winding up of the Trust III and Trust IV, as the case may be. f. We have assumed that no event set forth in Article 9 of the Trust III Declaration or the Trust IV Declaration, respectively, has occurred, to the same extent as if the Trust III Declaration and the Trust IV Declaration were in effect on the date hereof. g. With respect to the enforceability of the Declarations, we express no opinion as to the enforceability of provisions that purport to restrict any right that a holder of securities may have to apply for a judicial dissolution of the Trust III and Trust IV, as the case may be. h. Notwithstanding any provision in the Declarations to the contrary, we note that upon the occurrence of an event set forth in Article 9 thereof, the Trusts cannot make any payments or distributions to their respective securityholders until their respective creditors' claims are either paid in full or reasonable provision for payment thereof has been made. i. With respect to the enforceability of any provision of the Declarations wherein the parties provide for the appointment of a liquidator, we note that upon the application of any beneficial owner, the Delaware Court of Chancery has the power, upon cause shown, to wind up the affairs of a Delaware business trust and in connection 6 To each of the persons on Schedule I attached hereto December 23, 1997 Page 6 therewith to appoint a liquidating trustee other than the one agreed to by the beneficial owners thereof. j. We have assumed that the only assets owned by the Trusts will be the series of junior subordinated debt securities issued by the Depositor under the Indenture referred to in the Trust III Declaration and the Trust IV Declaration, as the case may be, cash on deposit in, or owing to, the respective Payment Accounts of Trust III and Trust IV, as the case may be, and all proceeds and rights in respect of the same. k. We note that we do not assume responsibility of the contents of the Registration Statement. This opinion is rendered solely for your benefit in connection with the matters set forth herein and, without our prior written consent, may not be furnished (except that it may be furnished to any federal, state or local regulatory agencies or regulators having appropriate jurisdiction and entitled to such disclosure) or quoted to, or relied upon by, any other person or entity for any purpose. We hereby consent to the use of our name under the heading "Legal Opinions" in the Registration Statement and to the filing of this opinion with the Securities and Exchange Commission as Exhibit 5.2 to the Registration Statement. very truly yours, /s/ Potter Anderson & Corroon 7 Schedule I REPUBLIC NEW YORK CORPORATION REPUBLIC NEW YORK CAPITAL III REPUBLIC NEW YORK CAPITAL IV EX-25.2 7 STATEMENT ON FORM T-1 1 Exhibit 25.2 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.) 452 FIFTH AVENUE NEW YORK, NY 10018 (212) 525-6100 (Address of principal executive offices) JUNIOR SUBORDINATED DEBT SECURITIES OF REPUBLIC NEW YORK CORPORATION (Title of the indenture securities) 2 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 herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 33-65171, Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 17, 1997, 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 February 18, 1997, Incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 333-24509-01. -2- 3 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 - The latest report of condition of Bankers Trust Company dated as of June 30, 1997. Copy attached. EXHIBIT 8 - Not Applicable. EXHIBIT 9 - Not Applicable. -3- 4 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 3rd day of December, 1997. BANKERS TRUST COMPANY By: /s/ Sandra J. Shaffer ------------------------------- Sandra J. Shaffer Assistant Vice President -4- 5 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 3rd day of December, 1997. BANKERS TRUST COMPANY By: ------------------------------- Sandra J. Shaffer Assistant Vice President -5- 6 Legal Title of Bank: Bankers Trust Company Call Date: 6/30/97 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 JUNE 30, 1997 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
C400 Dollar Amounts in Thousands RCFD Bil Mil Thou - ------------------------------------------------------------------------------------------------------------------------------------ ASSETS / / / / / / / / / / / / / 1.Cash and balances due from depository institutions (from Schedule RC-A): / / / / / / / / / / / / / a. Noninterest-bearing balances and currency and coin(1) ................................... 0081 1,724,000 1.a. b. Interest-bearing balances(2) .................. 0071 2,648,000 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 3,990,000 2.b. 3.Federal funds sold and securities purchased under agreements to resell in domestic offices 1350 26,430,000 3. of the bank and of its Edge and Agreement subsidiaries, and in IBFs: / / / / / / / / / / / / / a. Federal funds sold ............................ b. Securities purchased under agreements to resell ..................................... 4.Loans and lease financing receivables: / / / / / / / / / / / / / a. Loans and leases, net of unearned income (from Schedule RC-C)............................ RCFD 2122 17,815,000 / / / / / / / / / / / / / 4.a. b. LESS: Allowance for loan and lease losses ... RCFD 3123 723,000 / / / / / / / / / / / / / 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 17,092,000 4.d. 5.Assets held in trading accounts ..................... 3545 40,350,000 5. 6.Premises and fixed assets (including capitalized leases) ................................. 2145 937,000 6. 7.Other real estate owned (from Schedule RC-M) ........ 2150 195,000 7. 8.Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ....... 2130 96,000 8. 9.Customers' liability to this bank on acceptances outstanding ............................. 2155 691,000 9. 10.Intangible assets (from Schedule RC-M) .............. 2143 85,000 10. 11.Other assets (from Schedule RC-F) ................... 2160 4,633,000 11. 12.Total assets (sum of items 1 through 11) ............ 2170 98,871,000 12.
(1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held in trading accounts. 7 Legal Title of Bank: Bankers Trust Company Call Date: 6/30/97 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 - ----------------------------------------------------------------------------------------------------------------------------------- LIABILITIES / / / / / / / / / 13. Deposits: / / / / / / / / / a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 18,026,000 13.a. (1) Noninterest-bearing(1) ............... RCON 6631 3,184,000 / / / / / / / / / 13.a.(1) (2) Interest-bearing ..................... RCON 6636 14,842,000 / / / / / / / / / 13.a.(2) b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E part II) RCFN 2200 22,173,000 13.b. (1) Noninterest-bearing .................. RCFN 6631 1,454,000 / / / / / / / / / 13.b.(1) (2) Interest-bearing ..................... RCFN 6636 20,719,000 / / / / / / / / / 13.b.(2) 14. Federal funds purchased and securities sold under agreements to repurchase in / / 2800 14,623,000 14. domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: / / / / / / / / / a. Federal funds purchased ................... RCFD 0278 14.a. b. Securities sold under agreements to repurchase ................................ RCFD 0279 14.b. 15. a. Demand notes issued to the U.S. Treasury .. RCON 2840 0 15.a. b. Trading liabilities ....................... RCFD 3548 19,819,000 15.b. 16. Other borrowed money: / / / / / / / / / a. With original maturity of one year or less ...................................... RCFD 2332 6,877,000 16.a. b. With original maturity of more than one year .................................. A547 217,000 16.b. c. With a remaining maturity of more than three years .......................... A548 4,848,000 16.c. 17. Mortgage indebtedness and obligations under capitalized leases ....................... 18. Bank's liability on acceptances executed and outstanding ....................... RCFD 2920 691,000 18. 19. Subordinated notes and debentures .............. RCFD 3200 1,251,000 |19. 20. Other liabilities (from Schedule RC-G) ......... RCFD 2930 4,872,000 20. 21. Total liabilities (sum of items 13 through 20) . ............................... RCFD 2948 93,397,000 21. / / / / / / / / / 22. Limited-life preferred stock and related surplus ................................ RCFD 3282 0 22. EQUITY CAPITAL / / / / / / / / / 23. Perpetual preferred stock and related surplus ................................ RCFD 3838 1,000,000 23. 24. Common stock ................................... RCFD 3230 1,001,000 24. 25. Surplus (exclude all surplus related to preferred stock) .................... RCFD 3839 540,000 25. 26. a. Undivided profits and capital reserves .......................... RCFD 3632 3,314,000 26.a. b. Net unrealized holding gains (losses) on available-for-sale securities ................................ RCFD 8434 (3,000) 26.b. 27. Cumulative foreign currency translation adjustments ........................ RCFD 3284 (378,000) 27. 28. Total equity capital (sum of items 23 through 27) .................... RCFD 3210 5,474,000 28. 29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, / / / / / / / / / and 28) ........................................ RCFD 3300 98,871,000 29.
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 Number performed for the bank by independent external ------ auditors as of any date during 1996 ........................................ RCFD 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other with generally accepted auditing standards by a certified external auditors (may be required by state chartering public accounting firm which submits a report on the bank authority) 2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external conducted in accordance with generally accepted auditing auditors standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external submits a report on the consolidated holding company auditors (but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work) 3 = Directors' examination of the bank conducted in 8 = No external audit work accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority)
(1) Including total demand deposits and noninterest-bearing time and savings deposits. (2) Includes limited-life preferred stock and related surplus. 8 STATE OF NEW YORK, BANKING DEPARTMENT I, MANUEL KURSKY, 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 September 17, 1997, providing for an increase in authorized capital stock from $2,001,666,670 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 to $2,201,666,670 consisting of 120,166,667 shares with a par value of $10 each designated as Common Stock and 1,000 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 26TH day of SEPTEMBER in the Year of our Lord one thousand nine hundred and NINETY-SEVEN. Manuel Kursky ------------------------------ Deputy Superintendent of Banks 9 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 Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($2,001,666,670), 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 1000 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 Two Billion, Two Hundred and One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($2,201,666,670), divided into One Hundred Twenty Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (120,166,667) shares with a par value of $10 each designated as Common Stock and 1000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock." 10 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 17th day of September, 1997. /s/ James T. Byrne, Jr. ----------------------------- James T. Byrne, Jr. Managing Director /s/ 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. /s/ Lea Lahtinen ----------------------------- Lea Lahtinen Sworn to before me this 17th day of September, 1997. /s/Josephine A. Monti - ------------------------------------ Notary Public JOSEPHINE A. MONTI Notary Public State of New York No. 52-4519901 Qualified in New York County Commission Expires October 19, 1997 EX-27 8 FINANCIAL DATA SCHEDULE
9 0000083246 REPUBLIC NEW YORK CORP 1,000 9-MOS DEC-31-1997 SEP-30-1997 862,840 3,674,729 3,833,416 5,705,698 14,686,765 9,451,299 9,571,775 13,004,684 326,091 57,791,765 33,437,881 7,441,423 150,595 4,341,564 550,000 0 273,765 2,757,043 57,791,765 796,002 1,173,314 395,899 2,365,215 1,070,340 1,603,690 761,525 12,000 11,093 649,575 480,997 333,037 0 0 333,037 5.77 5.77 0 0 0 0 0 0 0 0 0 0 0 0
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