<PAGE>
As filed with the Securities and Exchange Commission on April __, 1997
Reg. No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
<TABLE>
<CAPTION>
<S> <C>
DIME CAPITAL TRUST I
DIME BANCORP, INC. DIME CAPITAL TRUST II
(Exact name of registrant as specified in its charter) (Exact name of registrants as specified
in their Trust Agreements)
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of incorporation
incorporation or organization) or organization of registrants)
11-3197414 TO BE APPLIED FOR
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
C/O DIME BANCORP, INC.
589 FIFTH AVENUE 589 FIFTH AVENUE
NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10017
(212) 326-6170 (212) 326-6170
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of registrant's including area code, of each registrant's
principal executive offices) principal executive offices)
GENE C. BROOKS, ESQ.
DIME BANCORP, INC.
589 FIFTH AVENUE
NEW YORK, NEW YORK 10017
TEL: (212) 326-6170
(Name, address, including zip code, and telephone number,
including area code, of agent for service of each registrant)
WITH A COPY TO:
MITCHELL S. EITEL, ESQ. MICHAEL L. RYAN, ESQ.
SULLIVAN & CROMWELL CLEARY, GOTTLIEB, STEEN & HAMILTON
125 BROAD STREET ONE LIBERTY PLAZA
NEW YORK, NEW YORK 10004 NEW YORK, NEW YORK 10006
TEL: (212) 558-4000 TEL: (212) 225-2000
FAX: (212) 558-3588 FAX: (212) 225-3999
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from
time to time after the Registration Statement becomes effective.
If the only securities being registered 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, 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 cost-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration 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. [ ]
CALCULATION OF REGISTRATION FEE
==============================================================================
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of each class of Amount to offering price per aggregate offering Amount of
securities to be registered be registered unit(1) price(1) registration fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Junior Subordinated Deferrable
Interest
Debentures of Dime Bancorp,
Inc.......................... $1,000,000 $1,000 $1,000,000 N/A
Preferred Securities of Dime
Capital Trust I
and Dime Capital Trust II..... 1,000 $1,000 $1,000,000 $303.03
Dime Bancorp, Inc. Guarantee
with respect
to Preferred Securities(3)(4). N/A N/A N/A N/A
Total........................... $1,000,000A(5) 100% $1,000,000A(5) $303.03
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Deferrable Interest Debentures will be
purchased by Dime Capital Trust I and Dime Capital Trust II with the
proceeds of the sale of the Preferred Securities.
(3) No separate consideration will be received for the Dime Bancorp, Inc.
Guarantee.
(4) This Registration Statement is deemed to cover the Junior Subordinated
Deferrable Interest Debentures of Dime Bancorp, Inc., the rights of
holders of Junior Subordinated Deferrable Interest Debentures of Dime
Bancorp, Inc. under the Indenture, the rights of holders of Preferred
Securities of Dime Capital Trust I and Dime Capital Trust II under each
Trust Agreement, the rights of holders of the Preferred Securities
under the Guarantees and the Expense Agreement, which taken together,
fully irrevocably and unconditionally guarantee all of the respective
obligations of Dime Capital Trust I and Dime Capital Trust II under the
Preferred Securities.
(5) Such amount represents the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at their principal amount and the
issue price rather than the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at an original issue discount.
Such amount also represents the initial public offering price of Dime
Capital Trust I and Dime Capital Trust II Preferred Securities.
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED _______________
$1,000,000
Dime Bancorp, Inc.
Junior Subordinated Deferrable Interest Debentures
Dime Capital Trust I
Dime Capital Trust II
Preferred Securities fully and unconditionally
guaranteed, as described herein, by
DIME BANCORP, INC.
Dime Bancorp, Inc., a Delaware corporation (the "Corporation"), may
from time to time offer, in one or more series or issuances, its junior
subordinated deferrable interest debentures (the "Junior Subordinated
Debentures"). The Junior Subordinated Debentures will be unsecured and
subordinate and junior in right of payment to all Senior Debt (as
defined in "Description of Junior Subordinated Debentures--
Subordination") of the Corporation. If provided in an accompanying
Prospectus Supplement, the Corporation will have the right to defer
payments of interest on any series of Junior Subordinated Debentures by
extending the interest payment period thereon at any time or from time
to time for up to such number of consecutive interest payment periods
(which shall not extend beyond the Stated Maturity (as defined herein)
of the Junior Subordinated Debentures) with respect to each deferral
period as may be specified in such Prospectus Supplement (each, an
"Extension Period"). In such circumstances, however, the Corporation
would not be permitted, subject to certain exceptions set forth herein,
to declare or pay any dividends, distributions or other payments with
respect to, or repay, repurchase, redeem or otherwise acquire, the
Corporation's capital stock or debt securities that rank pari passu in
all respects with or junior to such series of Junior Subordinated
Debentures. See "Description of Junior Subordinated Debentures--Option
to Defer Interest Payments" and "--Restrictions on Certain Payments".
Dime Capital Trust I and Dime Capital Trust II, each a statutory
business trust created under the laws of the State of Delaware (each,
an "Issuer," and collectively, the "Issuers"), may severally offer,
from time to time, preferred securities (the "Preferred Securities")
representing preferred beneficial interests in such Issuer. The
Corporation will be the owner of the common securities representing
common ownership interests in such Issuer (the "Common Securities" and,
together with the Preferred Securities, the "Trust Securities").
(continued on next page)
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.
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK OR
SAVINGS ASSOCIATION AND ARE NOT INSURED OR GUARANTEED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
The date of this Prospectus is April __, 1997.
<PAGE>
(cover page continued)
Holders of the Preferred Securities will be entitled to receive
preferential cumulative cash distributions ("Distributions") accumulating
from the date of original issuance and payable periodically as provided
in an accompanying Prospectus Supplement. Concurrently with the issuance
by an Issuer of its Preferred Securities, such Issuer will invest the
proceeds thereof and of any contributions received in respect of the
Common Securities in a corresponding series of the Corporation's Junior
Subordinated Debentures (the "Corresponding Junior Subordinated
Debentures") with terms corresponding to the terms of that Issuer's
Preferred Securities (the "Related Preferred Securities"). The
Corresponding Junior Subordinated Debentures will be the sole assets of
each Issuer, and payments under the Corresponding Junior Subordinated
Debentures will be the only revenue of each Issuer. If provided in an
accompanying Prospectus Supplement, the Corporation may redeem the
Corresponding Junior Subordinated Debentures (and cause the redemption of
the Related Preferred Securities) or may terminate each Issuer and cause
the Corresponding Junior Subordinated Debentures to be distributed to the
holders of the Related Preferred Securities in liquidation of their
interests in such Issuer. See "Description of Preferred Securities--
Liquidation Distribution Upon Termination".
If provided in an accompanying Prospectus Supplement, the Corporation
will have the right to defer payments of interest on any series of
Corresponding Junior Subordinated Debentures. If interest payments are so
deferred, Distributions on the Related Preferred Securities will also be
deferred and the Corporation will not be permitted, subject to certain
exceptions set forth herein, to declare or pay any cash distributions
with respect to the Corporation's capital stock or debt securities that
rank pari passu in all respects with or junior to the Corresponding
Junior Subordinated Debentures. During an Extension Period, Distributions
will continue to accumulate (and the Related Preferred Securities will
accumulate additional Distributions thereon at the rate per annum set
forth in the Prospectus Supplement). See "Description of Preferred
Securities--Distributions".
Taken together, the Corporation's obligations under each series of
Junior Subordinated Debentures, the Indenture, the related Trust
Agreement, the related Expense Agreement and the related Guarantee (each,
as defined herein), in the aggregate, provide a full, irrevocable and
unconditional guarantee of payments of distributions and other amounts
due on the Related Preferred Securities. See "Relationship Among the
Preferred Securities, the Corresponding Junior Subordinated Debentures,
the Expense Agreements and the Guarantees--Full and Unconditional
Guarantee". The payment of Distributions with respect to the Preferred
Securities of each Issuer and payments on liquidation or redemption with
respect to such Preferred Securities, in each case out of funds held by
such Issuer, are each irrevocably guaranteed by the Corporation to the
extent described herein (each, a "Guarantee"). See "Description of
Guarantees". The obligations of the Corporation under each Guarantee will
be subordinate and junior in right of payment to all Senior Debt of the
Corporation.
The Junior Subordinated Debentures and Preferred Securities may be
offered in amounts, at prices and on terms to be determined at the time
of offering; provided, however, the aggregate initial public offering
price of all Junior Subordinated Debentures (other than Corresponding
Junior Subordinated Debentures) and Preferred Securities (including the
Corresponding Junior Subordinated Debentures) issued pursuant to the
Registration Statement of which this Prospectus forms a part shall not
exceed [___________]. Certain specific terms of the Junior Subordinated
Debentures or Preferred Securities in respect of which this Prospectus is
being delivered will be described in an accompanying Prospectus
Supplement, including without limitation and where applicable and to the
extent not set forth herein, (a) in the case of Junior Subordinated
Debentures, the specific designation, aggregate principal amount,
denominations, Stated Maturity (including any provisions for the
shortening or extension thereof), interest payment dates, interest rate
(which may be fixed or variable) or method of calculating interest, if
any, applicable Extension Period or interest deferral terms, if any,
place or places where principal, premium, if any, and interest, if any,
will be payable, any terms of redemption, any sinking fund provisions,
terms for any conversion or exchange into other securities, initial
offering or purchase price, methods of distribution and any other special
terms, and (b) in the case of Preferred Securities, the identity of the
Issuer, specific title, aggregate amount, stated liquidation amount,
number
2
<PAGE>
of securities, Distribution rate or method of calculating such rate,
Distribution payment dates, applicable Distribution deferral terms, if
any, place or places where Distributions will be payable, any terms of
redemption, exchange, initial offering or purchase price, methods of
distribution and any other special terms.
The Prospectus Supplement also will contain information, as
applicable, about certain United States federal income tax consequences
relating to the Junior Subordinated Debentures or Preferred Securities.
The Junior Subordinated Debentures and Preferred Securities may be
sold to or through underwriters, through dealers, remarketing firms or
agents or directly to purchasers. See "Plan of Distribution". The names
of any underwriters, dealers, remarketing firms or agents involved in the
sale of Junior Subordinated Debentures or Preferred Securities in respect
of which this Prospectus is being delivered and any applicable fee,
commission or discount arrangements with them will be set forth in a
Prospectus Supplement. The Prospectus Supplement will state whether the
Junior Subordinated Debentures or Preferred Securities will be listed on
any national securities exchange or automated quotation system. If the
Junior Subordinated Debentures or Preferred Securities are not listed on
any national securities exchange or automated quotation system, there can
be no assurance that there will be a secondary market for the Junior
Subordinated Debentures or Preferred Securities.
This Prospectus may not be used to consummate sales of Junior
Subordinated Debentures or Preferred Securities unless accompanied by a
Prospectus Supplement.
3
<PAGE>
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 at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the regional offices of the Commission located at 7 World Trade
Center, 13th Floor, Suite 1300, New York, New York 10048 and Suite 1400,
Citicorp Center, 14th Floor, 500 West Madison Street, Chicago, Illinois
60661. Copies of such material can also be obtained at prescribed rates
by writing to the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549. Such material may also be accessed
electronically by means of the Commission's home page on the Internet at
http://www.sec.gov.
The Corporation became the holding company of The Dime Savings Bank of
New York, FSB (the "Bank") pursuant to a reorganization effected on May
25, 1994; until that time, such reports, proxy statements and other
information were filed with the Office of Thrift Supervision (the "OTS").
Reports, proxy statements and other information filed prior to May 25,
1994 should be available for inspection and copying at the public
reference facilities maintained by the OTS at the Office of Public
Information, Office of Thrift Supervision, 1700 G Street, N.W.,
Washington, D.C. 20552, and also can be obtained by written request from
such office at prescribed rates.
The Corporation and the Issuers have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments and
exhibits thereto, the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the
securities offered hereby. This Prospectus does not contain all the
information set forth in the Registration Statement, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. For further information with respect to the Corporation and
the securities offered hereby, reference is made to the Registration
Statement and the exhibits and the financial statements, notes and
schedules filed as a part thereof or incorporated by reference therein,
which may be inspected at the public reference facilities of the
Commission at the addresses set forth above or through the Commission's
home page on the Internet. Statements made in this Prospectus concerning
the contents of any documents referred to herein are not necessarily
complete, and in each instance are qualified in all respects by reference
to the copy of such document filed as an exhibit to the Registration
Statement.
No separate financial statements of any Issuer have been included
herein. The Corporation and the Issuers do not consider that such
financial statements would be material to holders of the Preferred
Securities because each Issuer is a newly formed special purpose entity,
has no operating history or independent operations and is not engaged in
and does not propose to engage in any activity other than holding as
trust assets the Corresponding Junior Subordinated Debentures of the
Corporation and issuing the Trust Securities. Furthermore, taken
together, the Corporation's obligations under each series of
Corresponding Junior Subordinated Debentures, the Indenture, the related
Trust Agreement, the related Expense Agreement and the related Guarantee
provide, in the aggregate, a full, irrevocable and unconditional
guarantee of payments of Distributions and other amounts due on the
Related Preferred Securities of an Issuer. See "The Issuers",
"Description of Preferred Securities", "Description of Junior
Subordinated Debentures--Corresponding Junior Subordinated Debentures"
and "Description of Guarantees". In addition, the Corporation does not
expect that any of the Issuers will be filing reports under the Exchange
Act with the Commission.
4
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996, filed by the Corporation with the Commission is
incorporated into this Prospectus by reference.
Each document or report filed by the Corporation pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the termination of any offering of securities made by this
Prospectus shall be deemed to be incorporated by reference into this
Prospectus and to be made a part of this Prospectus from the date of
filing of such document. Any statement contained herein, or in a document
all or a portion of which is incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded for
purposes of the Registration Statement and this Prospectus to the extent
that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Corporation will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a
copy of any or all of the foregoing documents incorporated by reference
herein (other than exhibits not specifically incorporated by reference
into the texts of such documents). Requests for such documents should be
directed to Dime Bancorp, Inc., 589 Fifth Avenue, New York, New York
10017, Attention: Investor Relations Department. Telephone requests
should be directed to (212) 326-6170.
5
<PAGE>
THE CORPORATION
This information is qualified in its entirety by the detailed
information, definitions and financial statements appearing elsewhere
herein or incorporated herein by reference. Unless the context otherwise
requires, references herein to the Corporation include the Corporation
and its consolidated subsidiaries; references herein to the Bank include
the Bank and its consolidated subsidiaries.
GENERAL
The Corporation, a Delaware corporation headquartered in New York,
New York, is the holding company for the Bank, a federally-chartered
savings bank.
At December 31, 1996, the Corporation had total assets of $18.9
billion, total stockholders' equity of $1.0 billion, and total deposits
of $12.9 billion. The Corporation's core business activities include
consumer financial services, mortgage banking, commercial and multifamily
real estate lending, consumer lending, and business banking. The Bank
currently operates 85 branches in the greater New York metropolitan area,
one branch in Florida.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Corporation's consolidated ratios
of earnings to fixed charges calculated excluding and including interest
on deposits. The following ratios should be read in conjunction with the
Consolidated Financial Statements, the notes thereto and other financial
information included herein by reference. 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.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.. 1.42 1.26 1.22 1.11 1.62
Including Interest on Deposits.. 1.17 1.12 1.09 1.03 1.13
</TABLE>
6
<PAGE>
THE ISSUERS
Each Issuer is a statutory business trust formed under Delaware
law pursuant to (i) a trust agreement executed by the Corporation, as
Depositor of the Issuer, and the Delaware Trustee (as defined herein) of
such Issuer and (ii) the filing of a certificate of trust with the
Delaware Secretary of State. Each trust agreement will be amended and
restated in its entirety (each, as so amended and restated, a "Trust
Agreement") substantially in the form filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. Each Trust
Agreement will be qualified as an indenture under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). Each Issuer exists for
the exclusive purposes of (i) issuing and selling its Trust Securities,
(ii) using the proceeds from the sale of such Trust Securities to acquire
a series of Corresponding Junior Subordinated Debentures issued by the
Corporation, and (iii) engaging in only those other activities necessary
or incidental thereto (such as registering the transfer of the Trust
Securities). Accordingly, the Corresponding Junior Subordinated
Debentures and the right to reimbursement of expenses under the related
Expense Agreement will be the sole assets of each Issuer, and payments
under the Corresponding Junior Subordinated Debentures and the related
Expense Agreement will be the sole revenue of each Issuer.
All of the Common Securities of each Issuer will be owned by
the Corporation. The Common Securities of an Issuer will rank pari passu,
and payments will be made thereon pro rata, with the Preferred Securities
of such Issuer, except that upon the occurrence and continuance of an
event of default under a Trust Agreement resulting from an event of
default under the Indenture, as defined herein, the rights of the
Corporation, as holder of the Common Securities, to payment in respect of
Distributions and payments upon liquidation or redemption will be
subordinated to the rights of the holders of the Preferred Securities of
such Issuer. See "Description of Preferred Securities--Subordination of
Common Securities." The Corporation will acquire Common Securities in an
aggregate Liquidation Amount equal to not less than 3% of the total
capital of each Issuer.
Unless otherwise specified in the applicable Prospectus
Supplement, each Issuer has a term of approximately 55 years, but may
terminate earlier as provided in the applicable Trust Agreement. Each
Issuer's business and affairs are conducted by its trustees, each
appointed by the Corporation as holder of the Common Securities. The
trustees for each Issuer will be The Chase Manhattan Bank, as Property
Trustee (the "Property Trustee"); and Chase Manhattan Bank Delaware as
Delaware Trustee (the "Delaware Trustee"), and two individual trustees
(the "Administrative Trustees") who are employees or officers of or
affiliated with the Corporation (collectively, the "Issuer Trustees").
The Chase Manhattan Bank, as Property Trustee, will act as sole indenture
trustee under each Trust Agreement for purposes of compliance with the
Trust Indenture Act. The Chase Manhattan Bank will also act as trustee
under the Guarantees, as defined herein, and the Indenture. See
"Description of Guarantees" and "Description of Junior Subordinated
Debentures". The holder of the Common Securities of an Issuer, or the
holders of a majority in Liquidation Amount of the Related Preferred
Securities if an event of default under the Trust Agreement for such
Issuer has occurred and is continuing, will be entitled to appoint,
remove or replace the Property Trustee and/or the Delaware Trustee for
such Issuer. In no event will the holders of the 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 each Issuer Trustee are
governed by the applicable Trust Agreement. The Corporation will pay all
fees and expenses related to each Issuer and the offering of the
Preferred Securities and will pay, directly or indirectly, all ongoing
costs, expenses and liabilities of each Issuer.
7
<PAGE>
The principal executive office of each Issuer is 589 Fifth
Avenue, New York, New York 10017 and its telephone number is (212) 326-
6170.
8
<PAGE>
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus
Supplement, the Corporation intends to use the proceeds from the sale of
its Junior Subordinated Debentures (including Corresponding Junior
Subordinated Debentures issued to the Issuers in connection with the
investment by the Issuers of all of the proceeds from the sale of Trust
Securities) for general corporate purposes, including working capital,
capital expenditures, investments in or loans to subsidiaries,
refinancing of debt, including outstanding commercial paper and other
short-term indebtedness, redemption or repurchase of shares of its
outstanding common stock, the satisfaction of other obligations or for
such other purposes as may be specified in the applicable Prospectus
Supplement.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued in one or
more series under a Junior Subordinated Indenture, as supplemented from
time to time (as so supplemented, the "Indenture"), between the
Corporation and The Chase Manhattan Bank, as trustee (the "Debenture
Trustee"). This summary of certain terms and provisions of the Junior
Subordinated Debentures and the Indenture, which summarizes the material
provisions thereof, does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, the Indenture, the form
of which is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part, and to the Trust Indenture Act, to each of
which reference is hereby made. The Indenture is qualified under the
Trust Indenture Act. Whenever particular defined terms of the Indenture
(as supplemented or amended from time to time) are referred to herein or
in a Prospectus Supplement, such defined terms are incorporated herein or
therein by reference.
GENERAL
Each series of Junior Subordinated Debentures will rank pari
passu with all other series of Junior Subordinated Debentures and will be
unsecured and subordinate and junior in right of payment to the extent
and in the manner set forth in the Indenture to all Senior Debt (as
defined below) of the Corporation. See "--Subordination." The Corporation
is a non-operating holding company and almost all of the operating assets
of the Corporation and its consolidated subsidiaries are owned by such
subsidiaries. The Corporation relies primarily on dividends from such
subsidiaries to meet its obligations. 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 the subsidiary, except to the extent the
Corporation may itself be recognized as a creditor of that subsidiary.
Accordingly, the Junior Subordinated Debentures will be effectively
subordinated to all existing and future liabilities of the Corporation's
subsidiaries, and holders of Junior Subordinated Debentures should look
only to the assets of the Corporation for payments on the Junior
Subordinated Debentures. Except as otherwise provided in the applicable
Prospectus Supplement, the Indenture does not limit the incurrence or
issuance of other secured or unsecured debt of the Corporation, including
Senior Debt, whether under the Indenture, any other existing indenture or
any
9
<PAGE>
other indenture that the Corporation may enter into in the future or
otherwise. See "--Subordination" and the Prospectus Supplement relating
to any offering of Preferred Securities or Junior Subordinated
Debentures.
The Junior Subordinated Debentures will be issuable in one or
more series pursuant to an indenture supplemental to the Indenture or a
resolution of the Corporation's Board of Directors or a committee
thereof.
The applicable Prospectus Supplement will describe the
following terms of the Junior Subordinated Debentures: (1) the title of
the Junior Subordinated Debentures; (2) any limit upon the aggregate
principal amount of the Junior Subordinated Debentures; (3) the date or
dates on which the principal of the Junior Subordinated Debentures is
payable (the "Stated Maturity") or the method of determination thereof;
(4) the rate or rates, if any, or method of calculating the rate or
rates, if any, at which the Junior Subordinated Debentures shall bear
interest, the dates on which any such interest shall be payable (the
"Interest Payment Dates"), the right, if any, of the Corporation to defer
or extend an Interest Payment Date, and the record dates for any interest
payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined; (5) the place or places where, subject to
the terms of the Indenture as described below under "--Payment and Paying
Agents", the principal of and premium, if any, and interest on the Junior
Subordinated Debentures will be payable and where, subject to the terms
of the Indenture as described below under "--Denominations, Registration
and Transfer," the Junior Subordinated Debentures may be presented for
registration of transfer or exchange and the place or places where
notices and demands to or upon the Corporation in respect of the Junior
Subordinated Debentures and the Indentures may be made ("Place of
Payment"); (6) any period or periods within which or date or dates on
which, the price or prices at which and the terms and conditions upon
which Junior Subordinated Debentures may be redeemed, in whole or in
part, at the option of the Corporation or a holder thereof; (7) the
obligation or the right, if any, of the Corporation or a holder thereof
to redeem, purchase or repay the Junior Subordinated Debentures 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 the Junior Subordinated
Debentures shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation; (8) the denominations in which any Junior
Subordinated Debentures shall be issuable if other than denominations of
$1,000 and any integral multiple thereof; (9) if other than in U.S.
Dollars, the currency or currencies (including currency unit or units) in
which the principal of (and premium, if any) and interest and Additional
Interest, if any, on the Junior Subordinated Debentures shall be payable,
or in which the Junior Subordinated Debentures shall be denominated; (10)
any additions, modifications or deletions in the events of default under
the Indenture or covenants of the Corporation specified in the Indenture
with respect to the Junior Subordinated Debentures; (11) if other than
the principal amount thereof, the portion of the principal amount of
Junior Subordinated Debentures that shall be payable upon declaration of
acceleration of the maturity thereof; (12) any additions or changes to
the Indenture with respect to a series of Junior Subordinated Debentures
as shall be necessary to permit or facilitate the issuance of such series
in bearer form, registrable or not registrable as to principal, and with
or without interest coupons; (13) any index or indices used to determine
the amount of payments of principal of and premium, if any, on the Junior
Subordinated Debentures and the manner in which such amounts will be
determined; (14) the terms and conditions relating to the issuance of a
temporary Global Security representing all of the Junior Subordinated
Debentures of such series and the exchange of such temporary Global
Security for definitive Junior Subordinated Debentures of such series;
(15) subject to the terms described herein under "--Global
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Junior Subordinated Debentures", whether the Junior Subordinated
Debentures 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 Exchange Act; (16) the appointment of any paying
agent or agents; (17) the terms and conditions of any obligation or right
of the Corporation or a holder to convert or exchange the Junior
Subordinated Debentures into Preferred Securities; (18) the form of Trust
Agreement, Guarantee Agreement and Expense Agreement, if applicable; (19)
the relative degree, if any, to which such Junior Subordinated Debentures
of the series shall be senior to or be subordinated to other series of
such Junior Subordinated Debentures or other indebtedness of the
Corporation in right of payment, whether such other series of Junior
Subordinated Debentures or other indebtedness are outstanding or not; and
(20) any other terms of the Junior Subordinated Debentures not
inconsistent with the provisions of the Indenture.
Junior Subordinated Debentures may be sold at a substantial
discount below their stated principal amount, bearing no interest or
interest at a rate which at the time of issuance is below market rates.
Certain United States federal income tax consequences and special
considerations applicable to any such Junior Subordinated Debentures will
be described in the applicable Prospectus Supplement.
If the purchase price of any of the Junior Subordinated
Debentures is payable in one or more foreign currencies or currency units
or if any Junior Subordinated Debentures are denominated in one or more
foreign currencies or currency units or if the principal of, or (premium,
if any, or) interest on any Junior Subordinated Debentures is payable in
one or more foreign currencies or currency units, the restrictions,
elections, certain United States federal income tax consequences,
specific terms and other information with respect to such series of
Junior Subordinated Debentures and such foreign currency or currency
units will be set forth in the applicable Prospectus Supplement.
If any index is used to determine the amount of payments of
principal of or (premium, if any, or) interest on any series of Junior
Subordinated Debentures, special United States federal income tax,
accounting and other considerations applicable thereto will be described
in the applicable Prospectus Supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus
Supplement, the Junior Subordinated Debentures will be issuable only in
registered form without coupons in denominations of $1000 and any
integral multiple thereof. Junior Subordinated Debentures of any series
will be exchangeable for other Junior Subordinated Debentures of the same
issue and series, of any authorized denominations, of a like aggregate
principal amount, of the same original issue date and Stated Maturity and
bearing the same interest rate.
Junior Subordinated Debentures may be presented for exchange as
provided above, and may be presented for registration of transfer (with
the form of transfer endorsed thereon, or a satisfactory written
instrument of transfer, duly executed), at the office of the appropriate
securities registrar or at the office of any transfer agent designated by
the Corporation for such purpose with respect to any series
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of Junior Subordinated Debentures and referred to in the applicable
Prospectus Supplement, without service charge and upon payment of any
taxes and other governmental charges as described in the Indenture. The
Corporation will appoint the Debenture Trustee as securities registrar
under the Indenture. If the applicable Prospectus Supplement refers to
any transfer agents (in addition to the securities registrar) initially
designated by the Corporation with respect to any series of Junior
Subordinated Debentures, the Corporation may at any time rescind the
designation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, provided that the
Corporation maintains a transfer agent in each place of payment for such
series. The Corporation may at any time designate additional transfer
agents with respect to any series of Junior Subordinated Debentures.
In the event of any redemption, neither the Corporation nor the
Debenture Trustee shall be required to (i) issue, register the transfer
of or exchange Junior Subordinated Debentures of any series during the
period beginning at the opening of business 15 days before the day of
selection for redemption of Junior Subordinated Debentures of that series
and ending at the close of business on the day of mailing of the relevant
notice of redemption or (ii) transfer or exchange any Junior Subordinated
Debentures so selected for redemption, except, in the case of any Junior
Subordinated Debentures being redeemed in part, any portion thereof not
to be redeemed.
GLOBAL JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures of a series may be issued in
whole or in part in the form of one or more Global Junior Subordinated
Debentures that will be deposited with, or on behalf of, a depositary
(the "Depositary") identified in the Prospectus Supplement relating to
such series. Global Junior Subordinated Debentures may be issued only in
fully registered form and in either temporary or permanent form. Unless
and until it is exchanged in whole or in part for the individual Junior
Subordinated Debentures represented thereby, a Global Junior Subordinated
Debenture may not be transferred except as a whole by the Depositary for
such Global Junior Subordinated Debenture to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee
of such Depositary or by the Depositary or any nominee to a successor
Depositary or any nominee of such successor.
The specific terms of the depositary arrangement with respect
to a series of Junior Subordinated Debentures will be described in the
Prospectus Supplement relating to such series. The Corporation
anticipates that the following provisions will generally apply to
depositary arrangements.
Upon the issuance of a Global Junior Subordinated Debenture,
and the deposit of such Global Junior Subordinated Debenture with or on
behalf of the Depositary, the Depositary for such Global Junior
Subordinated Debenture or its nominee will credit, on its book-entry
registration and transfer system, the respective principal amounts of the
individual Junior Subordinated Debentures represented by such Global
Junior Subordinated Debenture to the accounts of persons that have
accounts with such Depositary ("Participants"). Such accounts shall be
designated by the dealers, underwriters or agents with respect to such
Junior Subordinated Debentures or by the Corporation if such Junior
Subordinated Debentures are offered and sold directly by the Corporation.
Ownership of beneficial
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interests in a Global Junior Subordinated Debenture will be limited to
Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Junior Subordinated
Debenture will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable Depositary or
its nominee (with respect to interests of Participants) and the records
of Participants (with respect to interests of persons who hold through
Participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form.
Such limits and such laws may impair the ability to transfer beneficial
interests in a Global Junior Subordinated Debenture.
So long as the Depositary for a Global Junior Subordinated
Debenture, or its nominee, is the registered owner of such Global Junior
Subordinated Debenture, such Depositary or such nominee, as the case may
be, will be considered the sole owner or holder of the Junior
Subordinated Debentures represented by such Global Junior Subordinated
Debenture for all purposes under the Indenture governing such Junior
Subordinated Debentures. Except as provided below, owners of beneficial
interests in a Global Junior Subordinated Debenture will not be entitled
to have any of the individual Junior Subordinated Debentures of the
series represented by such Global Junior Subordinated Debenture
registered in their names, will not receive or be entitled to receive
physical delivery of any such Junior Subordinated Debentures of such
series in definitive form and will not be considered the owners or
holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest on
individual Junior Subordinated Debentures represented by a Global Junior
Subordinated Debenture registered in the name of a Depositary or its
nominee will be made to the Depositary or its nominee, as the case may
be, as the registered owner of the Global Junior Subordinated Debenture
representing such Junior Subordinated Debentures. None of the
Corporation, the Debenture Trustee, any Paying Agent, or the Securities
Registrar for such Junior Subordinated Debentures will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the Global
Junior Subordinated Debenture representing such Junior Subordinated
Debentures or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Corporation expects that the Depositary for a series of
Junior Subordinated Debentures or its nominee, upon receipt of any
payment of principal, premium, if any, or interest in respect of a
permanent Global Junior Subordinated Debenture representing any of such
Junior Subordinated Debentures, immediately will credit Participants'
accounts with payments in amounts proportionate to their respective
beneficial interest in the principal amount of such Global Junior
Subordinated Debenture for such Junior Subordinated Debentures as shown
on the records of such Depositary or its nominee. The Corporation also
expects that payments by Participants to owners of beneficial interests
in such Global Junior Subordinated Debenture held through such
Participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." Such payments
will be the responsibility of such Participants.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Depositary for a series of Junior Subordinated
Debentures is at any time unwilling, unable or ineligible to continue as
depositary and the Corporation is unable to locate a qualified successor,
the Corporation will issue
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individual Junior Subordinated Debentures of such series in exchange for
the Global Junior Subordinated Debenture representing such series of
Junior Subordinated Debentures. In addition, the Corporation may at any
time and in its sole discretion, subject to any limitations described in
the Prospectus Supplement relating to such Junior Subordinated
Debentures, determine not to have any Junior Subordinated Debentures of
such series represented by one or more Global Junior Subordinated
Debentures and, in such event, will issue certificated Junior
Subordinated Debentures of such series in exchange for the Global Junior
Subordinated Debenture or Securities representing such series of Junior
Subordinated Debentures. Further, if the Corporation so specifies with
respect to the Junior Subordinated Debentures of a series, an owner of a
beneficial interest in a Global Junior Subordinated Debenture
representing Junior Subordinated Debentures of such series may, on terms
acceptable to the Corporation, the Debenture Trustee and the Depositary
for such Global Junior Subordinated Debenture, receive certificated
Junior Subordinated Debentures of such series in exchange for such
beneficial interests, subject to any limitations described in the
Prospectus Supplement relating to such Junior Subordinated Debentures. In
any such instance, an owner of a beneficial interest in a Global Junior
Subordinated Debenture will be entitled to physical delivery of
certificated Junior Subordinated Debentures of the series represented by
such Global Junior Subordinated Debenture equal in principal amount to
such beneficial interest and to have such Junior Subordinated Debentures
registered in its name. Individual Junior Subordinated Debentures of such
series so issued will be issued in denominations, unless otherwise
specified by the Corporation, of $1000 and integral multiples thereof.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of (and premium, if any) and any
interest on Junior Subordinated Debentures will be made at the office of
the Debenture Trustee in the City of New York or at the office of such
paying agent or paying agents as the Corporation may designate from time
to time, except that at the option of the Corporation payment of any
interest may be made (i) except in the case of Global Junior Subordinated
Debentures, by check mailed to the address of the Person entitled thereto
as such address shall appear in the securities register, or (ii) by
transfer to an account maintained by the person entitled thereto as
specified in the securities register, provided that proper transfer
instructions have been received by the Regular Record Date. Unless
otherwise indicated in the applicable Prospectus Supplement, payment of
any interest on Junior Subordinated Debentures will be made to the person
in whose name such Junior Subordinated Debenture is registered at the
close of business on the Regular Record Date for such interest except in
the case of Defaulted Interest. The Corporation may at any time designate
additional paying agents or rescind the designation of any paying agent;
however, the Corporation will at all times be required to maintain a
paying agent in each place of payment for each series of Junior
Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any paying
agent, or then held by the Corporation in trust, for the payment of the
principal of (and premium, if any) or interest on any Junior Subordinated
Debenture and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall, at the
request of the Corporation, be repaid to the Corporation and the holder
of such Junior Subordinated Debenture shall thereafter look, as a general
unsecured creditor, only to the Corporation for payment thereof.
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OPTION TO DEFER INTEREST PAYMENTS
If provided in the applicable Prospectus Supplement, the
Corporation will have the right at any time and from time to time during
the term of any series of Junior Subordinated Debentures to defer payment
of interest for up to such number of consecutive interest payment periods
as may be specified in the applicable Prospectus Supplement (each, an
"Extension Period"), subject to the terms, conditions and covenants, if
any, specified in such Prospectus Supplement, provided that such
Extension Period may not extend beyond the Stated Maturity of such series
of Junior Subordinated Debentures. Certain United States federal income
tax consequences and special considerations applicable to any such Junior
Subordinated Debentures will be described in the applicable Prospectus
Supplement.
REDEMPTION
Unless otherwise indicated in the applicable Prospectus
Supplement, Junior Subordinated Debentures will not be subject to any
sinking fund.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Corporation may, at its option, redeem the Junior
Subordinated Debentures of any series in whole at any time or in part
from time to time. If the Junior Subordinated Debentures of any series
are so redeemable only on or after a specified date or upon the
satisfaction of additional conditions, the applicable Prospectus
Supplement will specify such date or describe such conditions. Junior
Subordinated Debentures in denominations larger than $1000 may be
redeemed in part but only in integral multiples of $1000. Except as
otherwise specified in the applicable Prospectus Supplement, the
redemption price for any Junior Subordinated Debenture so redeemed shall
equal any accrued and unpaid interest (including Additional Interest)
thereon to the redemption date, plus 100% of the principal amount
thereof.
Except as otherwise specified in the applicable Prospectus
Supplement, if a Tax Event (as defined below) in respect of the Issuer of
any Related Preferred Securities shall occur and be continuing, the
Corporation may, at its option, redeem such series of Corresponding
Junior Subordinated Debentures in whole (but not in part) at any time
within 90 days following the occurrence of such Tax Event, at a
redemption price equal to 100% of the principal amount of such Junior
Subordinated Debentures then outstanding plus accrued and unpaid interest
to the date fixed for redemption, except as otherwise specified in the
applicable Prospectus Supplement.
"Tax Event" means the receipt by an Issuer of a series of
Related Preferred Securities 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 prospective 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 pronouncement or decision is announced on or after the date of
issuance of such Related Preferred Securities, there is more than an
insubstantial risk that (i) such Issuer 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 Corresponding Junior
Subordinated
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Debentures, (ii) interest payable by the Corporation on such
Corresponding Junior Subordinated Debentures 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)
such Issuer is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
Notice of any redemption will be mailed at least 45 days but
not more than 75 days before the redemption date to each Holder of Junior
Subordinated Debentures to be redeemed at its registered address. Unless
the Corporation defaults in payment of the redemption price, on and after
the redemption date interest shall cease to accrue on such Junior
Subordinated Debentures or portions thereof called for redemption.
RESTRICTIONS ON CERTAIN PAYMENTS
The Corporation will covenant, as to each series of Junior
Subordinated Debentures, that it will not, and will not permit any
subsidiary of the Corporation to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Corporation's capital stock or (ii)
make any payment of principal of or interest or premium, if any, on or
repay or repurchase or redeem any debt securities of the Corporation
(including other Junior Subordinated Debentures) that rank pari passu in
all respects with or junior in interest to the Junior Subordinated
Debentures (other than (a) repurchases, redemptions or other acquisitions
of shares of capital stock of the Corporation in connection with any
employment contract, benefit plan or other similar arrangement with or
for the benefit of one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or stockholder
stock purchase plan or in connection with the issuance of capital stock
of the Corporation (or securities convertible into or exercisable for
such capital stock) as consideration in an acquisition transaction
entered into prior to the applicable Extension Period, (b) as a result of
any exchange or conversion of any class or series of the Corporation's
capital stock (or any capital stock of a subsidiary of the Corporation)
for any class or series of the Corporation's capital stock or of any
class or series of the Corporation's indebtedness for any class or series
of the Corporation's capital stock, (c) 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, (d) any declaration of a dividend in
connection with any stockholder's rights plan, or the issuance of rights,
stock or other property under any stockholder's rights plan, or the
redemption or repurchase of rights pursuant thereto, or (e) any dividend
in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend
is being paid or ranks pari passu with or junior to such stock), if at
such time (i) there shall have occurred any event of which the
Corporation has actual knowledge that (a) with the giving of notice or
the lapse of time, or both, would constitute an "Event of Default" under
the Indenture with respect to the Junior Subordinated Debentures of such
series and (b) in respect of which the Corporation shall not have taken
reasonable steps to cure, (ii) if such Junior Subordinated Debentures are
held by an Issuer of a series of Related Preferred Securities, the
Corporation shall be in default with respect to its payment of any
obligations under the Guarantee relating to such Related Preferred
Securities or (iii) the Corporation shall have given notice of its
selection of an Extension Period as provided in the Indenture with
respect to the Junior
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Subordinated Debentures of such series 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 any series of Junior
Subordinated Debentures, amend, waive or supplement the Indenture for
specified purposes, including, among other things, curing ambiguities,
defects or inconsistencies (provided that any such action does not
materially adversely affect the interest of the holders of any series of
Junior Subordinated Debentures or, in the case of Corresponding Junior
Subordinated Debentures, the holders of the Related Preferred Securities
so long as they remain outstanding) and qualifying, or maintaining the
qualification of, the Indenture under the Trust Indenture Act. The
Indenture contains provisions permitting the Corporation and the
Debenture Trustee, with the consent of the holders of not less than a
majority in principal amount of each outstanding series of Junior
Subordinated Debentures affected, to modify the Indenture in a manner
affecting adversely the rights of the holders of such series of the
Junior Subordinated Debentures in any material respect; provided, that no
such modification may, without the consent of the holder of each
outstanding Junior Subordinated Debenture so affected, (i) change the
Stated Maturity of any series of Junior Subordinated Debentures (except
as otherwise specified in the applicable Prospectus Supplement), or
reduce the principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon, or change the method of calculating
the rate of interest thereon, or (ii) reduce the percentage of principal
amount of Junior Subordinated Debentures of any series, the holders of
which are required to consent to any such modification of the Indenture,
provided that, in the case of Corresponding Junior Subordinated
Debentures, so long as any of the Related Preferred Securities remain
outstanding, (a) no such modification may be made that adversely affects
the holders of such Related Preferred Securities in any material respect,
and no termination of the Indenture may occur, and no waiver of any event
of default or compliance with any covenant under the Indenture may be
effective, without the prior consent of the holders of at least a
majority of the aggregate Liquidation Amount of all outstanding Related
Preferred Securities affected unless and until the principal of the
Corresponding Junior Subordinated Debentures and all accrued and unpaid
interest thereon have been paid in full and certain other conditions have
been satisfied and (b) where a consent under the Indenture would require
the consent of each holder of Corresponding Junior Subordinated
Debentures, no such consent will be given by the Property Trustee without
the prior consent of each holder of Related Preferred Securities.
In addition, the Corporation and the Debenture Trustee may
execute, without the consent of any holder of Junior Subordinated
Debentures, any supplemental Indenture for the purpose of creating any
new series of Junior Subordinated Debentures.
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DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following
described events with respect to a series of Junior Subordinated
Debentures that has occurred and is continuing constitutes a "Debenture
Event of Default" with respect to such series of Junior Subordinated
Debentures:
(i) failure for 30 days to pay any interest on such series of
Junior Subordinated Debentures, including any Additional Interest in
respect thereof, when due (subject to the deferral of any interest
payment in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on such
series of Junior Subordinated Debentures when due whether, at maturity or
upon redemption; or
(iii) failure to observe or perform any other covenants
contained in the Indenture for 90 days after written notice to the
Corporation from the Debenture Trustee or the holders of at least 25% in
aggregate outstanding principal amount of such affected series of
outstanding Junior Subordinated Debentures; or
(iv) certain events of bankruptcy, insolvency or reorganization
of the Corporation.
The holders of a majority in aggregate outstanding principal
amount of Junior Subordinated Debentures of each series affected 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 Junior Subordinated Debentures of each series affected may
declare the principal due and payable immediately upon a Debenture Event
of Default. In case a Debenture Event of Default shall occur and be
continuing as to a series of Corresponding Junior Subordinated
Debentures, the Property Trustee will have the right to declare the
principal of and the interest on such Corresponding Junior Subordinated
Debentures, and any other amounts payable under the Indenture, to be
forthwith due and payable and to enforce its other rights as a creditor
with respect to such Corresponding Junior Subordinated Debentures. In the
case of Corresponding Junior Subordinated Debentures, should the
Debenture Trustee or the Property Trustee fail to make such declaration,
the holders of at least 25% in aggregate Liquidation Amount of the
Related Preferred Securities shall have such right. The Property Trustee
may annul such declaration and waive such default, provided all defaults
have been cured and all payment obligations have been made current.
Should the Property Trustee fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
Related Preferred Securities shall have such right.
The holders of a majority in aggregate outstanding principal
amount of each series of Junior Subordinated Debentures affected thereby
may, on behalf of the holders of all the Junior Subordinated Debentures
of such series, waive any default, except a default in the payment of
principal or interest (including any Additional Interest) (unless such
default has been cured and a sum sufficient to pay all matured
installments of interest (including any Additional 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
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of each outstanding Junior Subordinated Debenture of such series. In the
case of Corresponding Junior Subordinated Debentures, the holders of a
majority in aggregate Liquidation Amount of the Related Preferred
Securities shall have such right. The Corporation is required to file
annually with the Debenture Trustee a certificate as to whether or not
the Corporation is in compliance with all the conditions and covenants
applicable to it under the Indenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Debenture Event of Default with respect to a series of
Corresponding Junior Subordinated Debentures has occurred and is
continuing and such event is attributable to the failure of the
Corporation to pay interest or principal on such Corresponding Junior
Subordinated Debentures on the date such interest or principal is due and
payable, a holder of Related Preferred Securities may institute a legal
proceeding directly against the Corporation for enforcement of payment to
such holder of the principal of or interest (including any Additional
Interest) on such Corresponding Junior Subordinated Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Related
Preferred Securities of such holder (a "Direct Action"). The Corporation
may not amend the Indenture to remove the foregoing right to bring a
Direct Action without the prior written consent of the holders of all of
the Preferred Securities outstanding. If the right to bring a Direct
Action is removed, the applicable Issuer may become subject to the
reporting obligations under the Exchange Act. The Corporation shall have
the right under the Indenture to set-off any payment made to such holder
of Preferred Securities by the Corporation in connection with a Direct
Action.
The holders of the 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 Corresponding Junior
Subordinated Debentures unless there shall have been an event of default
under the Trust Agreement. See "Description of Preferred Securities--
Events of Default; Notice".
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Corporation shall not
consolidate with or merge 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 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 into another person or conveys or
transfers its properties and assets substantially as an entirety to any
person, the successor is organized under the laws of the United States or
any state or the District of Columbia, and such successor expressly
assumes the Corporation's obligations on the Junior Subordinated
Debentures issued under the 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, and (iii) certain other
conditions as prescribed by the Indenture are met.
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The general provisions of the Indenture do not afford holders
of the Junior Subordinated Debentures protection in the event of a highly
leveraged or other transaction involving the Corporation that may
adversely affect holders of the Junior Subordinated Debentures.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all
Junior Subordinated Debentures not previously delivered to the Debenture
Trustee for cancellation (i) have become due and payable or (ii) will
become due and payable at their Stated Maturity within one year, and the
Corporation deposits or causes to be deposited with the Debenture Trustee
funds, in trust, for the purpose and in an amount in the currency or
currencies in which the Junior Subordinated Debentures are payable
sufficient to pay and discharge the entire indebtedness on the Junior
Subordinated Debentures not previously delivered to the Debenture Trustee
for cancellation for the principal (and premium, if any) and interest
(including any Additional Interest) to the date of the deposit or to the
Stated Maturity, as the case may be, then the Indenture will cease to be
of further effect (except as to the Corporation's obligations to pay all
other sums due pursuant to the Indenture and to provide the officers'
certificates and opinions of counsel described therein), and the
Corporation will be deemed to have satisfied and discharged the
Indenture.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable Prospectus
Supplement, the Junior Subordinated Debentures of any series may be
convertible or exchangeable into Junior Subordinated Debentures of
another series or into Preferred Securities of another series. The
specific terms on which Junior Subordinated Debentures of any series may
be so converted or exchanged will be set forth in the applicable
Prospectus Supplement. Such terms may include provisions for conversion
or exchange, either mandatory, at the option of the holder, or at the
option of the Corporation, in which case the number of shares of
Preferred Securities or other securities to be received by the holders of
Junior Subordinated Debentures would be calculated as of a time and in
the manner stated in the applicable Prospectus Supplement.
SUBORDINATION
The Junior Subordinated Debentures will be subordinate in right
of payment, to the extent set forth in the Indenture, to all Senior Debt
(as defined below) of the Corporation. If the Corporation defaults in the
payment of any principal, premium, if any, or interest, if any, or any
other amount payable on any Senior Debt when the same becomes due and
payable, whether at maturity or at a date fixed for redemption or by
declaration of acceleration or otherwise, then, unless and until such
default has been cured or waived or has ceased to exist or all Senior
Debt has been paid, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) may be made or agreed to be made on
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the Junior Subordinated Debentures, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the Junior
Subordinated Debentures.
As used herein, "Senior Debt" means any obligation of the
Corporation to its creditors, whether now outstanding or subsequently
incurred, other than any obligation as to which, in the instrument
creating or evidencing the obligation or pursuant to which the obligation
is outstanding, it is provided that such obligation is not Senior Debt,
but does not include trade accounts payable and accrued liabilities
arising in the ordinary course of business. Senior Debt includes the
Corporation's outstanding subordinated debt securities and any
subordinated debt securities issued in the future with substantially
similar subordination terms, but does not include the Junior Subordinated
Debentures of any Series or any junior subordinated debt securities
issued in the future with subordination terms substantially similar to
those of the Junior Subordinated Debentures. Substantially all of the
existing indebtedness of the Corporation constitutes Senior Debt.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Corporation, its creditors or its property,
(ii) any proceeding for the liquidation, dissolution or other winding up
of the Corporation, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings, (iii) any assignment by the
Corporation for the benefit of creditors or (iv) any other marshalling of
the assets of the Corporation, all Senior Debt (including any interest
thereon accruing after the commencement of any such proceedings) shall
first be paid in full before any payment or distribution, whether in
cash, securities or other property, shall be made on account of the
Junior Subordinated Debentures. In such event, any payment or
distribution on account of the Junior Subordinated Debentures, whether in
cash, securities or other property, that would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Junior Subordinated Debentures will be paid or delivered directly to the
holders of Senior Debt in accordance with the priorities then existing
among such holders until all Senior Debt (including any interest thereon
accruing after the commencement of any such proceedings) has been paid in
full.
In the event of any such proceeding, after payment in full of
all sums owing with respect to Senior Debt, the holders of Junior
Subordinated Debentures, together with the holders of any obligations of
the Corporation ranking on a parity with the Junior Subordinated
Debentures, will be entitled to be paid from the remaining assets of the
Corporation the amounts at the time due and owing on the Junior
Subordinated Debentures and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, will be made
on account of any capital stock or obligations of the Corporation ranking
junior to the Junior Subordinated Debentures. If any payment or
distribution on account of the Junior Subordinated Debentures of any
character or any security, whether in cash, securities or other property
is received by any holder of any Junior Subordinated Debentures in
contravention of any of the terms hereof and before all the Senior Debt
has been paid in full, such payment or distribution or security will be
received in trust for the benefit of, and must be paid over or delivered
and transferred to, the holders of the Senior Debt at the time
outstanding in accordance with the priorities then existing among such
holders for application to the payment of all Senior Debt remaining
unpaid to the extent necessary to pay all such Senior Debt in full. By
reason of such subordination, in the event of the insolvency of the
Corporation, holders of Senior Debt may receive more, ratably, and
holders of the Junior Subordinated Debentures may receive less, ratably,
than the
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other creditors of the Corporation. Such subordination will not prevent
the occurrence of any Event of Default under the Indenture.
The Junior Subordinated Indenture places no limitation on the
amount of additional Senior Debt that may be incurred by the Corporation.
The Corporation expects from time to time to incur additional
indebtedness constituting Senior Debt.
TRUST EXPENSES
Pursuant to the Expense Agreement for each series of
Corresponding Junior Subordinated Debentures, the Corporation will
irrevocably and unconditionally agree with each Issuer that holds Junior
Subordinated Debentures that the Corporation will pay to such Issuer, and
reimburse such Issuer for, the full amounts of any costs, expenses or
liabilities of the Issuer, other than obligations of the Issuer to pay to
the holders of any Preferred Securities or other similar interests in the
Issuer the amounts due such holders pursuant to the terms of the
Preferred Securities or such other similar interests, as the case may be.
Such payment obligation will include any such costs, expenses or
liabilities of the Issuer that are required by applicable law to be
satisfied in connection with a termination of such Issuer.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be
governed by and construed in accordance with the laws of the State of New
York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee 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 Indenture at the request of any holder of Junior
Subordinated Debentures, 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.
CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
The Corresponding Junior Subordinated Debentures may be issued
in one or more series of Junior Subordinated Debentures under the
Indenture with terms corresponding to the terms of a series
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of Related Preferred Securities. In that event, concurrently with the
issuance of each Issuer's Preferred Securities, such Issuer will invest
the proceeds thereof and the consideration paid by the Corporation for
the Common Securities of such Issuer in such series of Corresponding
Junior Subordinated Debentures issued by the Corporation to such Issuer.
Each series of Corresponding Junior Subordinated Debentures will be in a
principal amount equal to the aggregate stated Liquidation Amount of the
Related Preferred Securities and the Common Securities of such Issuer and
will rank pari passu with all other series of Junior Subordinated
Debentures. Holders of the Related Preferred Securities will have the
rights in connection with modifications to the Indenture or upon
occurrence of Debenture Events of Default described under "--
Modification of Indenture" and "--Debenture Events of Default", unless
provided otherwise in the Prospectus Supplement for such Related
Preferred Securities.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Tax Event shall occur and be continuing, the Corporation
may, at its option, redeem the Corresponding Junior Subordinated
Debentures at any time within 90 days of the occurrence of such Tax
Event, in whole but not in part, subject to the provisions of the
Indenture and whether or not such Corresponding Junior Subordinated
Debentures are then otherwise redeemable at the option of the
Corporation. The redemption price for any Corresponding Junior
Subordinated Debentures shall be equal to 100% of the principal amount of
such Corresponding Junior Subordinated Debentures then outstanding plus
accrued and unpaid interest to the date fixed for redemption. For so long
as the applicable Issuer is the holder of all the outstanding
Corresponding Junior Subordinated Debentures, the proceeds of any such
redemption will be used by the Issuer to redeem the corresponding Trust
Securities in accordance with their terms. The Corporation may not redeem
a series of Corresponding Junior Subordinated Debentures in part unless
all accrued and unpaid interest has been paid in full on all outstanding
Corresponding Junior Subordinated Debentures of such series for all
interest periods terminating on or prior to the Redemption Date.
The Corporation will covenant in the Indenture, as to each
series of Corresponding Junior Subordinated Debentures, that if and so
long as (i) the Issuer of the related series of Trust Securities is the
holder of all such Corresponding Junior Subordinated Debentures, (ii) a
Tax Event in respect of such Issuer has occurred and is continuing and
(iii) the Corporation has elected, and has not revoked such election, to
pay Additional Sums (as defined under "Description of Preferred
Securities--Redemption or Exchange") in respect of such Trust Securities,
the Corporation will pay to such Issuer such Additional Sums. The
Corporation will also covenant, as to each series of Corresponding Junior
Subordinated Debentures, (i) to maintain directly or indirectly 100%
ownership of the Common Securities of the Issuer to which such
Corresponding Junior Subordinated Debentures have been issued, provided
that certain successors which are permitted pursuant to the Indenture may
succeed to the Corporation's ownership of the Common Securities, (ii) not
to voluntarily terminate, wind-up or liquidate any Issuer, except (a) in
connection with a distribution of Corresponding Junior Subordinated
Debentures to the holders of the Preferred Securities in exchange
therefor upon liquidation of such Issuer 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 the related Trust Agreement, to cause such
Issuer to remain classified as a grantor trust and not as an association
taxable as a corporation for United States federal income tax purposes.
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DESCRIPTION OF PREFERRED SECURITIES
Pursuant to the terms of the Trust Agreement for each Issuer,
the Issuer Trustees on behalf of such Issuer will issue the Preferred
Securities and the Common Securities. The Preferred Securities of a
particular Issuer will represent preferred beneficial interests in the
Issuer and the holders thereof will be entitled to a preference in
certain circumstances with respect to Distributions and amounts payable
on redemption or liquidation over the Common Securities of such Issuer,
as well as other benefits as described in the related Trust Agreement.
This summary of certain provisions of the Preferred Securities and each
Trust Agreement, which summarizes the material terms thereof, does not
purport to be complete and is subject to, and is qualified in its
entirety by reference to, all the provisions of each Trust Agreement,
including the definitions therein of certain terms, and the Trust
Indenture Act, to which reference is hereby made. Wherever particular
defined terms of a Trust Agreement (as amended or supplemented from time
to time) are referred to herein or in a Prospectus Supplement, such
defined terms are incorporated herein or therein by reference. The form
of the Trust Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. Each of the Issuers is a
legally separate entity and the assets of one are not available to
satisfy the obligations of any of the others.
GENERAL
The Preferred Securities of an Issuer will rank pari passu, and
payments will be made thereon pro rata, with the Common Securities of
that Issuer except as described under "--Subordination of Common
Securities". Legal title to the Corresponding Junior Subordinated
Debentures will be held by the Property Trustee in trust for the benefit
of the holders of the Related Preferred Securities and Common Securities.
Each Guarantee Agreement executed by the Corporation for the benefit of
the holders of an Issuer's Preferred Securities (the "Guarantee" for such
Preferred Securities) will be a guarantee on a subordinated basis with
respect to such Preferred Securities but will not guarantee payment of
Distributions or amounts payable on redemption or liquidation of such
Preferred Securities when such Issuer does not have funds on hand
available to make such payments. See "Description of Guarantees."
DISTRIBUTIONS
Distributions on the Preferred Securities will be cumulative,
will accumulate from the date of original issuance and will be payable on
such dates as specified in the applicable Prospectus Supplement. In the
event that any date on which Distributions are payable on the Preferred
Securities is not a Business Day (as defined below), payment of the
Distribution 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 to 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 either case with the same
force and effect as if made on such date (each date on which
Distributions are payable in accordance with the foregoing, a
"Distribution Date"). A "Business Day" shall mean any day other than a
Saturday or a Sunday or a day on which banking institutions in The City
of New York are authorized or required by
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law or executive order to remain closed or a day on which the corporate
trust office of the Property Trustee or the Debenture Trustee is closed
for business.
Each Issuer's Preferred Securities represent preferred
beneficial interests in the applicable Issuer, and the Distributions on
each Preferred Security will be payable at a rate specified in the
applicable Prospectus Supplement for such Preferred Securities. The
amount of Distributions payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months unless otherwise
specified in the applicable Prospectus Supplement. Distributions to which
holders of Preferred Securities are entitled will accumulate additional
Distributions at the rate per annum if and as specified in the applicable
Prospectus Supplement. The term "Distributions" as used herein includes
any such additional Distributions unless otherwise stated.
If provided in the applicable Prospectus Supplement, the
Corporation has the right under the Indenture, pursuant to which it will
issue the Corresponding Junior Subordinated Debentures, to defer the
payment of interest at any time or from time to time on any series of the
Corresponding Junior Subordinated Debentures for up to such number of
consecutive interest payment periods which will be specified in such
Prospectus Supplement relating to such series (each, an "Extension
Period"), provided that no Extension Period may extend beyond the Stated
Maturity of the Corresponding Junior Subordinated Debentures. As a
consequence of any such deferral, Distributions on the Related Preferred
Securities would be deferred (but would continue to accumulate additional
Distributions thereon at the rate per annum set forth in the Prospectus
Supplement for such Preferred Securities) by the Issuer of such Related
Preferred Securities during any such Extension Period. 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 or (ii) make any payment of principal of or interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the
Corporation that rank pari passu in all respects with or junior in
interest to the Corresponding Junior Subordinated Debentures (other than
(a) repurchases, redemptions or other acquisitions of shares of capital
stock of the Corporation in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of one
or more employees, officers, directors or consultants, in connection with
a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Corporation (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of any exchange or
conversion of any class or series of the Corporation's capital stock (or
any capital stock of a subsidiary of the Corporation) for any class or
series of the Corporation's capital stock or of any class or series of
the Corporation's indebtedness for any class or series of the
Corporation's capital stock, (c) 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, (d) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is
the same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock).
The revenue of each Issuer available for distribution to
holders of its Related Preferred Securities will be limited to payments
under the Corresponding Junior Subordinated Debentures in which
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the Issuer will invest the proceeds from the issuance and sale of its
Trust Securities. See "Description of Junior Subordinated Debentures--
Corresponding Junior Subordinated Debentures." If the Corporation does
not make interest payments on such Corresponding Junior Subordinated
Debentures, the Property Trustee will not have funds available to pay
Distributions on the Related Preferred Securities. The payment of
Distributions (if and to the extent the Issuer 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 Guarantees".
Distributions on the Preferred Securities will be payable to
the holders thereof as they appear on the register of such Issuer on the
relevant record dates, which, as long as the Preferred Securities remain
in book-entry form, will be one Business Day prior to the relevant
Distribution Date. Subject to any applicable laws and regulations and the
provisions of the applicable Trust Agreement, each such payment will be
made as described under "Book-Entry Issuance." In the event any Preferred
Securities are not in book-entry form, the relevant record date for such
Preferred Securities shall be the date at least 15 days prior to the
relevant Distribution Date, as specified in the applicable Prospectus
Supplement.
REDEMPTION OR EXCHANGE
Mandatory Redemption. Upon the repayment or redemption, in
whole or in part, of any Corresponding Junior Subordinated Debentures,
whether at maturity or upon earlier redemption as provided in the
Indenture, the proceeds from such repayment or redemption shall be
applied by the Property Trustee to redeem a Like Amount (as defined
below) of the Related Preferred Securities and the Common Securities,
upon not less than 30 nor more than 60 days notice, at a redemption price
(the "Redemption Price") equal to the aggregate Liquidation Amount of
such Trust Securities plus accumulated but unpaid Distributions thereon
to the date of redemption (the "Redemption Date") and the related amount
of the premium, if any, paid by the Corporation upon the concurrent
redemption of such Corresponding Junior Subordinated Debentures. See
"Description of Junior Subordinated Debentures--Redemption". If less than
all of any series of Corresponding Junior Subordinated Debentures are to
be repaid or redeemed on a Redemption Date, then the proceeds from such
repayment or redemption shall be allocated to the redemption pro rata of
the Related Preferred Securities and the Common Securities. The amount of
premium, if any, paid by the Corporation upon the redemption of all or
any part of any series of any Corresponding Junior Subordinated
Debentures to be repaid or redeemed on a Redemption Date shall be
allocated to the redemption pro rata of the Related Preferred Securities
and the Common Securities.
The Corporation will have the right to redeem any series of
Corresponding Junior Subordinated Debentures (i) on or after such date as
may be specified in the applicable Prospectus Supplement, in whole at any
time or in part from time to time, (ii) at any time, in whole (but not in
part), upon the occurrence of a Tax Event or (iii) as may be otherwise
specified in the applicable Prospectus Supplement.
Distribution of Corresponding Junior Subordinated Debentures.
The Corporation has the right at any time to terminate any Issuer and,
after satisfaction of the liabilities of creditors of such Issuer
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as provided by applicable law, cause the Corresponding Junior
Subordinated Debentures in respect of the Related Preferred Securities
and Common Securities issued by such Issuer to be distributed to the
holders of such Related Preferred Securities and Common Securities in
liquidation of the Issuer.
After the liquidation date fixed for any distribution of
Corresponding Junior Subordinated Debentures for any series of Related
Preferred Securities (i) such series of Related Preferred Securities will
no longer be deemed to be outstanding, (ii) the depositary or its
nominee, as the record holder of such series of Related Preferred
Securities, will receive a registered global certificate or certificates
representing the Corresponding Junior Subordinated Debentures to be
delivered upon such distribution and (iii) any certificates representing
such series of Related Preferred Securities not held by DTC or its
nominee will be deemed to represent the Corresponding Junior Subordinated
Debentures having a principal amount equal to the stated Liquidation
Amount of such series of Related Preferred Securities, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such series of Related Preferred Securities, until such
certificates are presented to the Property Trustee or its agent for
transfer or reissuance.
Any distribution of Corresponding Junior Subordinated
Debentures to holders of Related Preferred Securities shall be made to
the applicable recordholders thereof as they appear on the register for
such Related Preferred Securities on the relevant record date, which
shall be one Business Day prior to the liquidation date; provided,
however, that in the event that any Related Preferred Securities are not
in book-entry form, the relevant record date shall be a date at least 15
days prior to the liquidation date, as specified in the applicable
Prospectus Supplement.
There can be no assurance as to the market prices for the
Related Preferred Securities or the Corresponding Junior Subordinated
Debentures that may be distributed in exchange for Related Preferred
Securities if a dissolution and liquidation of an Issuer were to occur.
Accordingly, the Related Preferred Securities that an investor may
purchase, or the Corresponding Junior Subordinated Debentures that the
investor may receive on dissolution and liquidation of an Issuer, may
trade at a discount to the price that the investor paid to purchase the
Related Preferred Securities offered hereby.
Tax Event Redemption. If a Tax Event in respect of a series of
Related Preferred Securities and Common Securities shall occur and be
continuing, the Corporation has the right to redeem the Corresponding
Junior Subordinated Debentures in whole (but not in part) and thereby
cause a mandatory redemption of such Related Preferred Securities and
Common Securities in whole (but not in part) at the Redemption Price
within 90 days following the occurrence of such Tax Event. In the event a
Tax Event in respect of a series of Related Preferred Securities and
Common Securities has occurred and is continuing and the Corporation does
not elect to redeem the Corresponding Junior Subordinated Debentures and
thereby cause a mandatory redemption of such Related Preferred Securities
or to liquidate the related Issuer and cause the Corresponding Junior
Subordinated Debentures to be distributed to holders of such Related
Preferred Securities and Common Securities in exchange therefor upon
liquidation of the Issuer as described above, such Related Preferred
Securities will remain outstanding and Additional Sums (as defined below)
may be payable on the Corresponding Junior Subordinated Debentures.
"Additional Sums" means the additional amounts as may be
necessary in order that the amount of Distributions then due and payable
by an Issuer on the outstanding Preferred Securities and
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Common Securities of the Issuer shall not be reduced as a result of any
additional taxes, duties and other governmental charges to which such
Issuer has become subject as a result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of any
series of Trust Securities, Trust Securities of such series having a
Liquidation Amount (as defined below) equal to the principal amount of
Corresponding Junior Subordinated Debentures to be contemporaneously
redeemed in accordance with the Indenture, the proceeds of which will be
used to pay the Redemption Price of such Trust Securities, and (ii) with
respect to a distribution of Corresponding Junior Subordinated Debentures
to holders of any series of Trust Securities in connection with a
dissolution or liquidation of the related Issuer, Corresponding Junior
Subordinated Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities in respect of which such
distribution is made.
"Liquidation Amount" means the stated amount per Trust Security
of $1000 (or such other stated amount as is set forth in the applicable
Prospectus Supplement).
"Tax Event" with respect to an Issuer of a series of Related
Preferred Securities means the receipt by such Issuer 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 prospective 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 pronouncement or decision is announced on or
after the date of issuance of such Related Preferred Securities, there is
more than an insubstantial risk that (i) such Issuer 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
Corresponding Junior Subordinated Debentures, (ii) interest payable by
the Corporation on such Corresponding Junior Subordinated Debentures 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) such Issuer 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.
Possible Tax Law Changes. On February 6, 1997, the revenue
portion of President Clinton's 1997 budget (the "Budget Proposal"), was
released. If enacted, the Budget Proposal would generally deny interest
deductions for interest on an instrument issued by a corporation that has
a maximum term of more than 15 years and that is not shown as
indebtedness on the separate balance sheet of the issuer or, where the
instrument is issued to a related party (other than a corporation), where
the holder or some other related party issues a related instrument that
is not shown as indebtedness on the issuer's consolidated balance sheet.
The above described provision of the Budget Proposal is proposed to be
effective generally for instruments issued on or after the date of first
Congressional committee action. If a similar provision were to apply to
the Junior Subordinated Debentures, the Corporation would be unable to
deduct interest on the Junior Subordinated Debentures. Under current law,
the Corporation will be able to deduct interest on the Junior
Subordinated Debentures. There can be no assurance, however, that current
or future legislation proposals or final legislation will not affect the
ability of the Corporation to deduct interest on the Junior Subordinated
Debentures. Such a change could give rise to a Tax Event, which may
permit the Corporation to cause a redemption of the Preferred Securities,
as described more fully under "Description of Junior Subordinated
Debentures--Redemptions".
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REDEMPTION PROCEDURES
Related Preferred Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the applicable proceeds
from the contemporaneous redemption of the Corresponding Junior
Subordinated Debentures. Redemptions of the Preferred Securities shall be
made and the Redemption Price shall be payable on each Redemption Date
only to the extent that the related Issuer has funds on hand available
for the payment of such Redemption Price. See also "--Subordination of
Common Securities".
If the Property Trustee gives a notice of redemption in respect
of Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, to the extent funds are available, the Property Trustee
will deposit irrevocably with DTC funds sufficient to pay the applicable
Redemption Price and will give DTC irrevocable instructions and authority
to pay the Redemption Price to the holders of such Preferred Securities.
See "Book-Entry Issuance". If such Preferred Securities are no longer in
book-entry form, the Property Trustee, to the extent funds are available,
will irrevocably deposit with the paying agent for such Preferred
Securities funds sufficient to pay the applicable Redemption Price and
will give such paying agent irrevocable instructions and authority to pay
the Redemption Price to the holders thereof upon surrender of their
certificates evidencing such Preferred Securities. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for
any Preferred Securities called for redemption shall be payable to the
holders of such Preferred Securities on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have been given
and funds deposited as required, then upon the date of such deposit, all
rights of the holders of such Preferred Securities so called for
redemption will cease, except the right of the holders of such Preferred
Securities to receive the Redemption Price and any Distribution payable
in respect of the Preferred Securities on or prior to the Redemption
Date, but without interest on such Redemption Price, and such Preferred
Securities will cease to be outstanding. In the event that any date fixed
for redemption of Preferred Securities is not a Business Day, then
payment of the 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 each case, with the same
force and effect as if made on such date. In the event that payment of
the Redemption Price in respect of Preferred Securities called for
redemption is improperly withheld or refused and not paid either by the
Issuer or by the Corporation pursuant to the Guarantee as described under
"Description of Guarantees", Distributions on such Preferred Securities
will continue to accrue at the then applicable rate from the Redemption
Date originally established by the Issuer for such Preferred Securities
to the date such Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the 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
Preferred Securities by tender, in the open market or by private
agreement.
Payment of the Redemption Price on the Related Preferred
Securities shall be made to the applicable recordholders thereof as they
appear on the register for such Related Preferred Securities on the
relevant record date, which shall be one Business Day prior to the
Redemption Date; provided,
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however, that in the event that any Preferred Securities are not in book-
entry form, the relevant record date shall be a date at least 15 days
prior to the Redemption Date, as specified in the applicable Prospectus
Supplement.
If less than all of the Preferred Securities and Common
Securities issued by an Issuer are to be redeemed on a Redemption Date,
then the aggregate Liquidation Amount of such Preferred Securities and
Common Securities to be redeemed shall be allocated pro rata to the
Preferred Securities and the Common Securities based upon the relative
Liquidation Amounts of such classes. The particular Preferred Securities
to be redeemed shall be selected on a pro rata basis not more than 60
days prior to the Redemption Date by the Property Trustee from the
outstanding Preferred 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
$1000 or an integral multiple of $1000 in excess thereof, unless a
different amount is specified in the applicable Prospectus Supplement) of
the Liquidation Amount of Preferred Securities of a denomination larger
than $1000 (or such other denomination as is specified in the applicable
Prospectus Supplement). The Property Trustee shall promptly notify the
Securities registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for
partial redemption, the Liquidation Amount thereof to be redeemed. For
all purposes of each Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed
or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
Notice of any redemption will be mailed at least 30 days but
not more than 60 days before the Redemption Date to each holder of Trust
Securities to be redeemed, at its registered address. Unless the
Corporation defaults in payment of the Redemption Price on the
Corresponding Junior Subordinated Debentures, on and after the Redemption
Date interest will cease to accrue on such Corresponding Junior
Subordinated Debentures or portions thereof (and Distributions will cease
to accrue on the Related Preferred Securities or portions thereof) called
for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each
Issuer's Preferred Securities and Common Securities, as applicable, shall
be made pro rata based on the liquidation amount of such Preferred
Securities and Common Securities; provided, however, that if on any
Distribution Date, Redemption Date or liquidation date a Debenture Event
of Default shall have occurred and be continuing as a result of any
failure by the Corporation to pay any amounts in respect of the Junior
Subordinated Debentures when due, no payment of any Distribution on, or
Redemption Price of, or Liquidation Distribution, as defined below, in
respect of, any of the Issuer's Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the Issuer's outstanding
Preferred Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price the full
amount of such Redemption Price on all of the Issuer's outstanding
Preferred Securities then called for redemption, or in the case of
payment of the Liquidation Distribution the full amount of such
Liquidation Distribution on all Outstanding Preferred Securities, shall
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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 Redemption Price of, the Issuer's Preferred
Securities then due and payable.
In the case of any event of default under the applicable Trust
Agreement resulting from a Debenture Event of Default, the Corporation as
holder of such Issuer's Common Securities will be deemed to have waived
any right to act with respect to any such Event of Default under the
applicable Trust Agreement until the effect of all such Events of Default
with respect to such Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under the
applicable Trust Agreement 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 such Preferred Securities and not
on behalf of the Corporation as holder of the Issuer's Common Securities,
and only the holders of such Preferred Securities will have the right to
direct the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
Pursuant to each Trust Agreement, each Issuer shall terminate
automatically upon expiration of its term and shall terminate on 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 Corresponding Junior Subordinated Debentures to the holders of its
Trust Securities, if the Corporation, as Depositor, has given written
direction to the Property Trustee to terminate such Issuer; (iii)
redemption of all of the Issuer's Preferred Securities as described under
"--Redemption or Exchange"; and (iv) the entry of an order for the
dissolution of the Issuer by a court of competent jurisdiction.
If an early termination occurs as described in clause (i), (ii)
or (iv) above, the Issuer 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 such
Issuer as provided by applicable law, to the holders of such Trust
Securities in exchange therefor a Like Amount of the Corresponding Junior
Subordinated Debentures, unless such distribution is determined by the
Administrative Trustees not to be practical, in which event such holders
will be entitled to receive out of the assets of the Issuer available for
distribution to holders, after satisfaction of liabilities to creditors
of such Issuer as provided by applicable law, an amount equal to, in the
case of holders of Preferred Securities, the aggregate of the Liquidation
Amount plus accrued 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 such Issuer has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by such Issuer on its
Preferred Securities shall be paid on a pro rata basis. The holder(s) of
such Issuer's Common Securities will be entitled to receive distributions
upon any such liquidation pro rata with the holders of its Preferred
Securities, except that if a Debenture Event of Default has occurred and
is continuing as a result of any failure by the Corporation to pay any
amounts in respect of the Junior Subordinated Debentures when due, the
Preferred Securities shall have a priority over the Common Securities.
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EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of
Default" under each Trust Agreement with respect to the Preferred
Securities issued thereunder (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 under the
Indenture (see "Description of Junior Subordinated Debentures--Debenture
Events of Default"); or
(ii) default by the Issuer 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 Issuer 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 such Trust
Agreement (other than a covenant or warranty a default in the performance
of which or the breach of which is dealt with 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 Trustees by the holders of at least 25% in
aggregate Liquidation Amount of the outstanding Preferred Securities of
the applicable Issuer, 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 such Trust Agreement; 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 90 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 such
Issuer's 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 each Trust Agreement.
If a Debenture Event of Default has occurred and is continuing,
the Preferred Securities shall have a preference over the Common
Securities as described above. See "--Liquidation Distribution Upon
Termination." The existence of an Event of Default does not entitle the
holders of Preferred Securities to accelerate the maturity thereof.
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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 Preferred Securities. In no event will the holders of
the 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
applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be
continuing, at any time or from time to time, 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
Corporation, as the holder of the Common Securities, and the
Administrative Trustees shall have power to appoint one or more persons
either to act as a co-trustee, jointly with the Property Trustee, of all
or any part of such Trust 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 applicable Trust Agreement.
In case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any person into which the Property Trustee, the Delaware
Trustee or any Administrative Trustee that is not a natural person may be
merged or converted or with which it may be consolidated, or any person
resulting from any merger, conversion or consolidation to which such
Trustee shall be a party, or any person succeeding to all or
substantially all the corporate trust business of such Trustee, shall be
the successor of such Trustee under each Trust Agreement, provided such
person shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUERS
An Issuer may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other person, except
as described below. An Issuer may, at the request of the Corporation,
with the consent of the Administrative Trustees and without the consent
of the holders of the Preferred Securities, merge
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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, that
(i) such successor entity either (a) expressly assumes all of the
obligations of such Issuer 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 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
Corresponding Junior Subordinated Debentures, (iii) the Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any,
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities to be
downgraded by any nationally recognized statistical rating organization
which assigns ratings to the Preferred Securities, (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 Issuer, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Corporation has received an opinion from independent counsel to the
Issuer 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 Preferred Securities (including any Successor Securities)
in any material respect, and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the
Issuer nor such successor entity will be required to register as an
investment company under the Investment Company Act of 1940, as amended
(the "Investment Company Act"), and (viii) the Corporation or any
permitted successor or assignee owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor entity
under the Successor Securities at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, an Issuer shall not, except
with the consent of holders of 100% in Liquidation Amount of the
Preferred 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 Issuer or the successor entity to be
classified as an association taxable as a corporation or as other than a
grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Description of Guarantees--
Amendments and Assignment" and as otherwise required by law and the
applicable Trust Agreement, the holders of the Preferred Securities will
have no voting rights.
Each Trust Agreement 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 Preferred Securities (i) to
cure any ambiguity, correct or supplement any provisions in such Trust
Agreement that may be inconsistent with any other provision, or to make
any other provisions with respect to matters or questions arising under
such Trust Agreement, which shall not be inconsistent with the other
provisions
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of such Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of such Trust Agreement to such extent as shall be necessary
to ensure that the Issuer will be classified for United States federal
income tax purposes as a grantor trust or as other than an association
taxable as a corporation at all times that any Trust Securities are
outstanding or to ensure that the Issuer will not be required to register
as an "investment company" under the Investment Company Act; provided,
however, that in the case of either clause (i) or clause (ii), such
action shall not adversely affect in any material respect the interests
of any holder of Preferred Securities, and any amendments of such Trust
Agreement shall become effective when notice thereof is given to the
holders of Trust Securities. Each Trust Agreement 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 cause the Issuer to be taxable as a corporation
or affect the Issuer's status as a grantor trust for United States
federal income tax purposes or the Issuer's exemption from status as an
"investment company" under the Investment Company Act, provided that
without the consent of each holder of Trust Securities, such Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a holder
of Trust Securities to institute suit for the enforcement of any such
payment on or after such date.
So long as any Corresponding Junior Subordinated Debentures are
held by the Property Trustee, 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 such Corresponding
Junior Subordinated Debentures, (ii) waive any past default that is
waivable under the Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Junior Subordinated
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or such Corresponding Junior
Subordinated Debentures, 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 Preferred Securities;
provided, however, that where a consent under the Indenture would require
the consent of each holder of Corresponding Junior Subordinated
Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior consent of each holder of the
corresponding Preferred Securities. The Issuer Trustees shall not revoke
any action previously authorized or approved by a vote of the holders of
the Preferred Securities except by subsequent vote of the holders of the
Preferred Securities. The Property Trustee shall notify each holder of
Preferred Securities of any notice of default with respect to the
Corresponding Junior Subordinated Debentures. In addition to obtaining
the foregoing approvals of the holders of the 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
Issuer will not be classified as an association taxable as a corporation
for United States federal income tax purposes on account of such action
and such action would not cause the Issuer to be classified as other than
a grantor trust for United States federal income tax purposes.
Any required approval of holders of Preferred Securities may be
given at a meeting of holders of Preferred Securities convened for such
purpose or pursuant to written consent. The Administrative Trustees, or
at the written request of the Administrative Trustees, the Property
Trustee will cause a notice of any meeting at which holders of Preferred
Securities are entitled to vote, or of any
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matter upon which action by written consent of such holders is to be
taken, to be given to each holder of record of Preferred Securities in
the manner set forth in each Trust Agreement.
No vote or consent of the holders of Preferred Securities will
be required for an Issuer to redeem and cancel its Preferred Securities
in accordance with the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described
above, any of the 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.
GLOBAL PREFERRED SECURITIES
The Preferred Securities of a series may be issued in whole or
in part in the form of one or more Global Preferred Securities that will
be deposited with, or on behalf of, the Depositary identified in the
Prospectus Supplement relating to such series. Unless otherwise indicated
in the applicable Prospectus Supplement, the Depositary will be DTC.
Global Preferred Securities may be issued only in fully registered form
and in either temporary or permanent form. Unless and until it is
exchanged in whole or in part for the individual Preferred Securities
represented thereby, a Global Preferred Security may not be transferred
except as a whole by the Depositary for such Global Preferred Security to
a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by the Depositary or
any nominee to a successor Depositary or any nominee of such successor.
The specific terms of the depositary arrangement with respect
to a series of Preferred Securities will be described in the Prospectus
Supplement relating to such series. The Corporation anticipates that the
following provisions will generally apply to depositary arrangements.
Upon the issuance of a Global Preferred Security, and the
deposit of such Global Preferred Security with or on behalf of the
Depositary, the Depositary for such Global Preferred Security or its
nominee will credit, on its book-entry registration and transfer system,
the respective aggregate Liquidation Amounts of the individual Preferred
Securities represented by such Global Preferred Securities to the
accounts of Participants. Such accounts shall be designated by the
dealers, underwriters or agents with respect to such Preferred Securities
or by the Corporation if such Preferred Securities are offered and sold
directly by the Corporation. Ownership of beneficial interests in a
Global Preferred Security will be limited to Participants or persons that
may hold interests through Participants. Ownership of beneficial
interests in such Global Preferred Security will be shown on, and the
transfer of that ownership will be effected only through, records
maintained by the applicable Depositary or its nominee (with respect to
interests of Participants) and the records of Participants (with respect
to interests of persons who hold through Participants). The laws of some
states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws
may impair the ability to transfer beneficial interests in a Global
Preferred Security.
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So long as the Depositary for a Global Preferred Security, or
its nominee, is the registered owner of such Global Preferred Security,
such Depositary or such nominee, as the case may be, will be considered
the sole owner or holder of the Preferred Securities represented by such
Global Preferred Security for all purposes under the related Trust
Agreement. Except as provided below, owners of beneficial interests in a
Global Preferred Security will not be entitled to have any of the
individual Preferred Securities of the series represented by such Global
Preferred Security registered in their names, will not receive or be
entitled to receive physical delivery of any such Preferred Securities of
such series in definitive form and will not be considered the owners or
holders thereof under the related Trust Agreement.
Payments of principal of (and premium, if any) and interest on
individual Preferred Securities represented by a Global Preferred
Security registered in the name of a Depositary or its nominee will be
made to the Depositary or its nominee, as the case may be, as the
registered owner of the Global Preferred Security representing such
Preferred Securities. None of the Corporation, the Property Trustee, any
Paying Agent, or the Securities Registrar for such Preferred Securities
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests
of the Global Preferred Security representing such Preferred Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Corporation expects that the Depositary for a series of
Preferred Securities or its nominee, upon receipt of any payment of
Liquidation Amount, premium or Distributions, including any payment of
Redemption Price, in respect of a Global Preferred Security representing
any of such Preferred Securities immediately will credit Participants'
accounts with payments in amounts proportionate to their respective
beneficial interest in the aggregate Liquidation Amount of such Global
Preferred Security for such Preferred Securities as shown on the records
of such Depositary or its nominee. The Corporation also expects that
payments by Participants to owners of beneficial interests in such Global
Preferred Security held through such Participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or
registered in "street name." Such payments will be the responsibility of
such Participants.
Unless otherwise specified in the applicable Prospectus
Supplement, if a Depositary for a series of Preferred Securities is at
any time unwilling, unable or ineligible to continue as depositary and a
successor depositary is not appointed by the Issuer within 90 days, or if
there shall have occurred and be continuing a Debenture Event of Default
under the Indenture with respect to the Corresponding Junior Subordinated
Debentures, the Issuer will issue individual Preferred Securities of such
series in exchange for the Global Preferred Security representing such
series of Preferred Securities. In addition, the Issuer may at any time
and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Preferred Securities, determine
not to have any Preferred Securities of such series represented by one or
more Global Preferred Securities and, in such event, will issue
individual Preferred Securities of such series in exchange for the Global
Preferred Security representing such series of Preferred Securities.
Further, if the Issuer so specifies with respect to the Preferred
Securities of a series, an owner of a beneficial interest in a Global
Preferred Security representing Preferred Securities of such series may,
on terms acceptable to the Issuer, the Property Trustee and the
Depositary for such Global Preferred Security, receive individual
Preferred Securities of such series in exchange for such beneficial
interests, subject to any limitations described in the Prospectus
Supplement relating to such Preferred Securities. In any such instance,
an owner of a beneficial interest in a Global Preferred Security
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will be entitled to physical delivery of individual Preferred Securities
of the series represented by such Global Preferred Security equal in
principal amount to such beneficial interest and to have such Preferred
Securities registered in its name. Individual Preferred Securities of
such series so issued will be issued in denominations, unless otherwise
specified by the Issuer, and integral multiples thereof that ar the same
as the denominations and multiples in which the Preferred Securities are
issued.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made
to the Depositary, which shall credit the relevant accounts at the
Depositary on the applicable Distribution Dates or, if any Issuer's
Preferred Securities are not held by the Depositary, such payments shall
be made by check mailed to the address of the holder entitled thereto as
such address shall appear on the Register. Unless otherwise specified in
the applicable Prospectus Supplement, the paying agent (the "Paying
Agent") shall initially be the Property Trustee and any co-paying agent
chosen by the Property Trustee and acceptable to the Administrative
Trustees and the Corporation. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Property
Trustee and the Corporation. In the event that the Property Trustee shall
no longer be the Paying Agent, the Administrative Trustees shall appoint
a successor (which shall be a bank or trust company acceptable to the
Administrative Trustees and the Corporation) to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus
Supplement, the Property Trustee will act as registrar and transfer agent
for the Preferred Securities.
Registration of transfers of Preferred Securities will be
effected without charge by or on behalf of each Issuer, but upon payment
of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. The Issuers will not be
required to register or cause to be registered the transfer of their
Preferred Securities after such Preferred Securities 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 each Trust Agreement and, after
such 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 applicable
Trust Agreement at the request of any holder of Preferred 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
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continuing and the Property Trustee is required to decide between
alternative causes of action, construe ambiguous provisions in the
applicable Trust Agreement or is unsure of the application of any
provision of the applicable Trust Agreement, and the matter is not one on
which holders of Preferred Securities are entitled under such Trust
Agreement to vote, then the Property Trustee shall take such action as is
directed by the Corporation and if not so directed, shall take such
action as it deems advisable and in the best interests of the holders of
the Trust Securities and will have no liability except for its own bad
faith, negligence or willful misconduct.
MISCELLANEOUS
The Issuer Trustees are authorized and directed to conduct the
affairs of and to operate the Issuers in such a way that no Issuer will
be deemed to be an "investment company" required to be registered under
the Investment Company Act or classified as an association taxable as a
corporation or as other than a grantor trust for United States federal
income tax purposes and so that the Corresponding Junior Subordinated
Debentures will be treated as indebtedness of the Corporation for United
States federal income tax purposes. In this connection, the Corporation
and the Issuer Trustees are authorized to take any action, not
inconsistent with applicable law, the certificate of trust of each Issuer
or each Trust Agreement, that the Corporation and the Issuer 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 related Preferred Securities.
Holders of the Preferred Securities have no preemptive or
similar rights.
No Issuer may borrow money or issue debt or mortgage or pledge
any of its assets.
BOOK-ENTRY ISSUANCE
DTC will act as securities depositary for all of the Preferred
Securities and the Junior Subordinated Debentures, unless otherwise
referred to in the Prospectus Supplement relating to an offering of
Preferred Securities or Junior Subordinated Debentures. The Preferred
Securities and the Junior Subordinated Debentures will be issued only as
fully-registered securities registered in the name of Cede & Co. (DTC's
nominee). One or more fully-registered global certificates will be issued
for the Preferred Securities of each Issuer and the Junior Subordinated
Debentures, representing in the aggregate the total number of such
Issuer's Preferred Securities or aggregate principal balance of Junior
Subordinated Debentures, respectively, and will be deposited with DTC.
DTC is a limited purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New
York Banking Law, 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 the provisions of Section
17A of the Exchange Act. DTC holds securities that its Participants
deposit with DTC. DTC also facilitates the settlement among Participants
of securities transactions, such as transfers and pledges, in deposited
securities through
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electronic computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities
certificates. "Direct Participants" include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its Direct Participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and
the National Association of Securities Dealers, Inc. Access to the DTC
system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain
custodial relationships with Direct Participants, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of Preferred Securities or Junior Subordinated
Debentures within the DTC system must be made by or through Direct
Participants, which will receive a credit for the Preferred Securities or
Junior Subordinated Debentures on DTC's records. The ownership interest
of each actual purchaser of each Preferred Security and each Junior
Subordinated Debenture ("Beneficial Owner") is in turn to be recorded on
the Direct and Indirect Participants' records. Beneficial Owners will not
receive written confirmation from DTC of their purchases, but Beneficial
Owners are expected to receive written confirmations providing details of
the transactions, as well as periodic statements of their holdings, from
the Direct or Indirect Participants through which the Beneficial Owners
purchased Preferred Securities or Junior Subordinated Debentures.
Transfers of ownership interests in the Preferred Securities or Junior
Subordinated Debentures are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial
Owners will not receive certificates representing their ownership
interests in Preferred Securities or Junior Subordinated Debentures,
except in the event that use of the book-entry system for the Preferred
Securities of such Issuer or Junior Subordinated Debentures is
discontinued.
DTC has no knowledge of the actual Beneficial Owners of the
Preferred Securities or Junior Subordinated Debentures; DTC's records
reflect only the identity of the Direct Participants to whose accounts
such Preferred Securities or Junior Subordinated Debentures are credited,
which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners and
the voting rights of Direct Participants, Indirect Participants and
Beneficial Owners will be governed by arrangements among them, subject to
any statutory or regulatory requirements as may be in effect from time to
time.
Redemption notices will be sent to Cede & Co. as the registered
holder of the Preferred Securities or Junior Subordinated Debentures. If
less than all of an Issuer's Preferred Securities or the Junior
Subordinated Debentures are being redeemed, DTC's current practice is to
determine by lot the amount of the interest of each Direct Participant to
be redeemed.
Although voting with respect to the Preferred Securities or the
Junior Subordinated Debentures is limited to the holders of record of the
Preferred Securities or Junior Subordinated Debentures, in those
instances in which a vote is required, neither DTC nor Cede & Co. will
itself consent or vote with respect to Preferred Securities or Junior
Subordinated Debentures. Under its usual
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procedures, DTC would mail an omnibus proxy (the "Omnibus Proxy") to the
relevant Trustee as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts such Preferred Securities or Junior
Subordinated Debentures are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Distribution payments on the Preferred Securities or the Junior
Subordinated Debentures will be made by the relevant Trustee to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's
records unless DTC has reason to believe that it will not receive
payments on such payment date. Payments by Participants to Beneficial
Owners will be governed by standing instructions and customary practices
and will be the responsibility of such Participant and not of DTC, the
relevant Trustee, the Issuer thereof or the Corporation, subject to any
statutory or regulatory requirements as may be in effect from time to
time. Payment of Distributions to DTC is the responsibility of the
relevant Trustee, disbursement of such payments to Direct Participants is
the responsibility of DTC, and disbursements of such payments to the
Beneficial Owners is the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as securities
depositary with respect to any of the Preferred Securities or the Junior
Subordinated Debentures at any time by giving reasonable notice to the
relevant Trustee and the Corporation. In the event that a successor
securities depositary is not obtained, definitive Preferred Security or
Junior Subordinated Debenture certificates representing such Preferred
Securities or Junior Subordinated Debentures are required to be printed
and delivered. The Corporation, at its option, may decide to discontinue
use of the system of book-entry transfers through DTC (or a successor
depositary). After a Debenture Event of Default, the holders of a
majority in liquidation preference of Preferred Securities or aggregate
principal amount of Junior Subordinated Debentures may determine to
discontinue the system of book-entry transfers through DTC. In any such
event, definitive certificates for such Preferred Securities or Junior
Subordinated Debentures will be printed and delivered.
The information in this section concerning DTC and DTC's book-
entry system has been obtained from sources that the Issuers and the
Corporation believe to be accurate, but the Issuers and the Corporation
assume no responsibility for the accuracy thereof. Neither the Issuers
nor the Corporation has any responsibility for the performance by DTC or
its Participants of their respective obligations as described herein or
under the rules and procedures governing their respective operations.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Corporation
concurrently with the issuance by each Issuer of its Preferred Securities
for the benefit of the holders from time to time of such Preferred
Securities. _____________________ will act as indenture trustee
("Guarantee Trustee") under each Guarantee for the purposes of compliance
with the Trust Indenture Act and each Guarantee will be qualified as an
indenture under the Trust Indenture Act. This summary of certain
provisions of the Guarantees, which summarizes the material terms
thereof, does not purport to be complete and is subject to, and qualified
in its entirety by reference to, all of the provisions of each Guarantee,
including the definitions therein of certain terms, and the Trust
Indenture Act, to each of which reference is hereby
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made. The form of the Guarantee has been filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. Reference
in this summary to Preferred Securities means that Issuer's Preferred
Securities to which a Guarantee relates. The Guarantee Trustee will hold
each Guarantee for the benefit of the holders of the related Issuer's
Preferred Securities.
GENERAL
The Corporation will irrevocably agree to pay in full on a
subordinated basis, to the extent set forth herein, the Guarantee
Payments (as defined below) to the holders of the Preferred Securities,
as and when due, regardless of any defense, right of set-off or
counterclaim that such Issuer may have or assert other than the defense
of payment. The following payments with respect to the Preferred
Securities, to the extent not paid by or on behalf of the related Issuer
(the "Guarantee Payments"), will be subject to the Guarantee: (i) any
accumulated and unpaid Distributions required to be paid on such
Preferred Securities, to the extent that such Issuer has funds on hand
available therefor at such time, (ii) the Redemption Price with respect
to any Preferred Securities called for redemption, to the extent that
such Issuer has funds on hand available therefor at such time, or (iii)
upon a voluntary or involuntary dissolution, winding up or liquidation of
such Issuer (unless the Corresponding Junior Subordinated Debentures are
distributed to holders of such Preferred Securities in exchange
therefor), the lesser of (a) the Liquidation Distribution and (b) the
amount of assets of such Issuer remaining available for distribution to
holders of Preferred Securities after satisfaction of liabilities to
creditors of such Issuer 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
applicable Preferred Securities or by causing the Issuer to pay such
amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a
subordinated basis of the related Issuer's obligations under the
Preferred Securities, but will apply only to the extent that such related
Issuer has funds sufficient to make such payments, and is not a guarantee
of collection.
If the Corporation does not make interest payments on the
Corresponding Junior Subordinated Debentures held by the Issuer, the
Issuer will not be able to pay Distributions on the Related Preferred
Securities and will not have funds legally available therefor. Each
Guarantee will rank subordinate and junior in right of payment to all
Senior Debt of the Corporation. See "--Status of the Guarantees". 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 that subsidiary, except to the extent
the Corporation may itself be recognized as a creditor of that
subsidiary. Accordingly, the Corporation's obligations under the
Guarantees will be effectively subordinated to all existing and future
liabilities of the Corporation's subsidiaries, and claimants should look
only to the assets of the Corporation for payments thereunder. See "The
Corporation." Except as otherwise provided in the applicable Prospectus
Supplement, the Guarantees do not limit the incurrence or issuance of
other secured or unsecured debt of the Corporation, including Senior
Debt, whether under the Indenture, any other existing indenture or any
other indenture that the Corporation may enter into in the future or
otherwise. See the applicable Prospectus Supplement relating to any
offering of Preferred Securities.
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The Corporation has, through the applicable Guarantee, the
applicable Trust Agreement, the applicable series of Corresponding Junior
Subordinated Debentures, the Indenture and the applicable Expense
Agreement, taken together, fully, irrevocably and unconditionally
guaranteed all of the Issuer's obligations under the Related 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 Issuer's
obligations under the Related Preferred Securities. See "Relationship
Among the Preferred Securities, the Corresponding Junior Subordinated
Debentures, the Expense Agreements and the Guarantees."
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the
Corporation and will rank subordinate and junior in right of payment to
all Senior Debt of the Corporation in the same manner as Junior
Subordinated Debentures.
Each Guarantee will rank pari passu with all other Guarantees
issued by the Corporation. Each 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). Each Guarantee will be held for the benefit
of the holders of the Related Preferred Securities. Each Guarantee will
not be discharged except by payment of the Guarantee Payments in full to
the extent not paid by the Issuer or upon distribution to the holders of
the Preferred Securities of the Corresponding Junior Subordinated
Debentures. None of the Guarantees places a limitation on the amount of
additional Senior Debt that may be incurred by the Corporation. The
Corporation expects from time to time to incur additional indebtedness
constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially
adversely affect the rights of holders of the related Preferred
Securities (in which case no vote will be required), no Guarantee may be
amended without the prior approval of the holders of not less than a
majority of the aggregate Liquidation Amount of such outstanding
Preferred Securities. The manner of obtaining any such approval will be
as set forth under "Description of Preferred Securities--Voting Rights;
Amendment of Each Trust Agreement." All guarantees and agreements
contained in each Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Corporation and shall
inure to the benefit of the holders of the related Preferred Securities
then outstanding.
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EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the
failure of the Corporation to perform any of its payment obligations
thereunder or to perform any non-payment obligations if such non-payment
default remains unremedied for 30 days. The holders of not less than a
majority in aggregate Liquidation Amount of the related 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 such Guarantee or to direct the exercise of any
trust or power conferred upon the Guarantee Trustee under such Guarantee.
Any holder of the Preferred Securities may, to the extent
permissible under applicable law, institute a legal proceeding directly
against the Corporation to enforce its rights under such Guarantee
without first instituting a legal proceeding against the Issuer, 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.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Corporation in performance of any
Guarantee, undertakes to perform only such duties as are specifically set
forth in each Guarantee and, after default with respect to any 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 any Guarantee at the request of any holder
of any Preferred Securities unless it is offered reasonable indemnity
against the costs, expenses and liabilities that might be incurred
thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and
effect upon full payment of the Redemption Price of the related Preferred
Securities, upon full payment of the amounts payable upon liquidation of
the related Issuer or upon distribution of Corresponding Junior
Subordinated Debentures to the holders of the Related Preferred
Securities in exchange therefor. Each Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any
holder of the related Preferred Securities must restore payment of any
sums paid under such Preferred Securities or such Guarantee.
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GOVERNING LAW
Each Guarantee will be governed by and construed in accordance
with the laws of the State of New York.
THE EXPENSE AGREEMENT
Pursuant to the Expense Agreement entered into by the
Corporation under each Trust Agreement (the "Expense Agreement"), the
Corporation will irrevocably and unconditionally guarantee to each Person
or entity to whom the Issuer becomes indebted or liable, the full payment
of any costs, expenses or liabilities of the Issuer, other than
obligations of the Issuer to pay to the holders of any Preferred
Securities or other similar interests in the Issuer of the amounts due
such holders pursuant to the terms of the Preferred Securities or such
other similar interests, as the case may be. The Expense Agreement will
be enforceable by third parties.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE CORRESPONDING
JUNIOR SUBORDINATED DEBENTURES, THE EXPENSE AGREEMENTS
AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the
Preferred Securities (to the extent the Issuer has funds available for
the payment of such Distributions) are irrevocably guaranteed by the
Corporation as and to the extent set forth under "Description of
Guarantees." Taken together, the Corporation's obligations under each
series of Corresponding Junior Subordinated Debentures, the Indenture,
the related Trust Agreement, the related Expense Agreement, and the
related Guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee of payments of Distributions and other amounts
due on the Related 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 Issuer's obligations under the Related
Preferred Securities. If and to the extent that the Corporation does not
make payments on any series of Corresponding Junior Subordinated
Debentures, such Issuer will not pay Distributions or other amounts due
on its Related Preferred Securities. The Guarantees do not cover payment
of Distributions when the related Issuer does not have sufficient funds
to pay such Distributions. In such event, the remedy of a holder of a
series of Related Preferred Securities is to institute a legal proceeding
directly against the Corporation pursuant to the terms of the Indenture
for enforcement of payment of amounts of such Distributions to such
holder. The obligations of the Corporation under each Guarantee are
subordinate and junior in right of payment to all Senior Debt of the
Corporation.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made
when due on each series of Corresponding Junior Subordinated Debentures,
such payments will be sufficient to cover Distributions and other
payments due on the Related Preferred Securities, primarily because (i)
the aggregate principal amount of each series of Corresponding Junior
Subordinated Debentures will be equal to the sum of the aggregate stated
Liquidation Amount of the Related Preferred Securities and Common
Securities; (ii) the interest rate and interest and other payment dates
on each series of Corresponding Junior Subordinated Debentures will match
the Distribution rate and Distribution and other payment dates for the
Related Preferred Securities; (iii) the Corporation shall pay for all and
any costs, expenses and liabilities of such Issuer except the Issuer's
obligations to holders of its Preferred Securities under such Preferred
Securities; and (iv) each Trust Agreement provides that the Issuer will
not engage in any activity that is not consistent with the limited
purposes of such Issuer.
Notwithstanding anything to the contrary in the Indenture, the
Corporation has the right to set-off any payment it is otherwise required
to make thereunder with and to the extent the Corporation has theretofore
made, or is concurrently on the date of such payment making, a payment
under the related Guarantee.
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ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any Preferred Security may, to the extent
permissible under applicable law, institute a legal proceeding directly
against the Corporation to enforce its rights under the related Guarantee
without first instituting a legal proceeding against the Guarantee
Trustee, the related Issuer or any other person or entity.
A default or event of default under any Senior Debt of the
Corporation would not constitute a default or Debenture Event of Default
under the Indenture. However, in the event of payment defaults under, or
acceleration of, Senior Debt of the Corporation, the subordination
provisions of the Indenture provide that no payments may be made in
respect of the Junior Subordinated Debentures 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 any series of Junior
Subordinated Debentures would constitute a Debenture Event of Default
under the Indenture.
LIMITED PURPOSE OF ISSUERS
Each Issuer's Preferred Securities evidence a beneficial
interest in such Issuer, and each Issuer exists for the sole purpose of
issuing its Preferred Securities and Common Securities and investing the
proceeds thereof in Junior Subordinated Debentures. A principal
difference between the rights of a holder of a Preferred Security and a
holder of a Junior Subordinated Debenture is that a holder of a Junior
Subordinated Debenture is entitled to receive from the Corporation the
principal amount of and interest accrued on Junior Subordinated
Debentures held, while a holder of Preferred Securities is entitled to
receive Distributions from such Issuer (or from the Corporation under the
applicable Guarantee) if and to the extent such Issuer has funds
available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or
liquidation of any Issuer involving the liquidation of the Corporation,
the holders of the Related Preferred Securities will be entitled to
receive, out of the assets held by such Issuer, the Liquidation
Distribution in cash. See "Description of Preferred Securities--
Liquidation Distribution Upon Termination." Upon any voluntary or
involuntary liquidation or bankruptcy of the Corporation, the Property
Trustee, as holder of the Corresponding Junior Subordinated Debentures,
would be a subordinated creditor of the Corporation, subordinated in
right of payment to all Senior Debt as set forth in the Indenture, but
entitled to receive payment in full of principal and interest, before any
stockholders of the Corporation receive payments or distributions. Since
the Corporation is the guarantor under each Guarantee and has agreed to
pay for all costs, expenses and liabilities of each Issuer (other than
the Issuer's obligations to the holders of its Preferred Securities), the
positions of a holder of such Preferred Securities and a holder of such
Corresponding Junior Subordinated Debentures relative to other creditors
and to stockholders of the
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Corporation in the event of liquidation or bankruptcy of the Corporation
are expected to be substantially the same.
PLAN OF DISTRIBUTION
The Junior Subordinated Debentures or the Preferred Securities
may be sold in a public offering to or through underwriters or dealers
designated from time to time. The Corporation and each Issuer may sell
its Junior Subordinated Debentures or Preferred Securities as soon as
practicable after effectiveness of the Registration Statement of which
this Prospectus forms a part. The names of any underwriters or dealers
involved in the sale of the Junior Subordinated Debentures or Preferred
Securities in respect of which this Prospectus is delivered, the amount
or number of Junior Subordinated Debentures and Preferred Securities to
be purchased by any such underwriters and any applicable commissions or
discounts will be set forth in the applicable Prospectus Supplement.
Underwriters may offer and sell Junior Subordinated Debentures
or Preferred Securities at a fixed price or prices, which may be changed,
or from time to time at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices.
In connection with the sale of Preferred Securities, underwriters may be
deemed to have received compensation from the Corporation and/or the
applicable Issuer in the form of underwriting discounts or commissions
and may also receive commissions. Underwriters may sell Junior
Subordinated Debentures or Preferred Securities to or through dealers,
and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters.
Any underwriting compensation paid by the Corporation and/or
the applicable Issuer to underwriters in connection with the offering of
Junior Subordinated Debentures or Preferred Securities, and any
discounts, concessions or commissions allowed by such underwriters to
participating dealers, will be described in an accompanying Prospectus
Supplement. Underwriters and dealers participating in the distribution of
Junior Subordinated Debentures or Preferred Securities may be deemed to
be underwriters, and any discounts and commissions received by them and
any profit realized by them on resale of such Junior Subordinated
Debentures or Preferred Securities may be deemed to be underwriting
discounts and commissions, under the Securities Act. Underwriters and
dealers may be entitled, under agreement with the Corporation and the
applicable Issuer, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities
Act, and to reimbursement by the Corporation for certain expenses.
In connection with the offering of the Preferred Securities of
any Issuer, such Issuer may grant to the underwriters an option to
purchase additional Preferred Securities to cover over-allotments, if
any, at the initial public offering price (with an additional
underwriting commission), as may be set forth in the accompanying
Prospectus Supplement. If such Issuer grants any over-allotment option,
the terms of such over-allotment option will be set forth in the
Prospectus Supplement for such Preferred Securities.
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Underwriters and dealers may engage in transactions with, or
perform services for, the Corporation and/or the applicable Issuer and/or
any of their affiliates in the ordinary course of business.
The Junior Subordinated Debentures and the Preferred Securities
will be new issues of securities and will have no established trading
market. Any underwriters to whom Junior Subordinated Debentures or
Preferred Securities are sold for public offering and sale may make a
market in such Junior Subordinated Debentures and Preferred Securities,
but such underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. Such Junior Subordinated
Debentures or Preferred Securities may or may not be listed on a national
securities exchange or the Nasdaq National Market. No assurance can be
given as to the liquidity of or the existence of trading markets for any
Junior Subordinated Debentures or Preferred Securities.
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the
Preferred Securities, the enforceability of the Trust Agreements and the
formation of the Issuers will be passed upon by, special Delaware counsel
to the Corporation and the Issuers to be named in the Prospectus
Supplement. Unless otherwise indicated in the applicable Prospectus
Supplement, the validity of the Guarantees and the Junior Subordinated
Debentures will be passed upon for the Corporation by Sullivan &
Cromwell, New York, New York, and for the Underwriters by Cleary,
Gottlieb, Steen & Hamilton, New York, New York. Certain matters relating
to United States federal income tax considerations will be passed upon
for the Corporation by Sullivan & Cromwell.
EXPERTS
The consolidated financial statements of the Corporation and
subsidiaries as of December 31, 1996 and 1995, and for each of the years
in the three-year period ended December 31, 1996 have been incorporated
by reference herein and in the registration statement in reliance upon
the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing. Such report refers to
changes in the method of accounting for goodwill.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration fee under the Securities Act of 1933, as $ 303.03
amended...............................................
Blue Sky fees and expenses (including counsel fees).... 5,000.00
Fees of rating agencies................................ 130,000.00
Trustees' fees and expenses............................ 10,000.00
Printing and engraving................................. 55,000.00
Accounting services.................................... 15,000.00
Legal fees of Registrant's counsel..................... 150,000.00*
Miscellaneous.......................................... 20,000.00
-----------
Total.............................................. $
===========
- -----------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act") may be
permitted to directors, officers and controlling persons of the
Corporation pursuant to the foregoing provisions, or otherwise, Dime
Bancorp, Inc. (the "Corporation") has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the Corporation of expenses incurred or paid by a director,
officer or controlling person of the Corporation in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Corporation will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
Section 145 of the Delaware General Corporation Law contains
detailed provisions for indemnification of directors and officers of
Delaware corporations against expenses, judgments, fines and settlements
in connection with litigation.
The Certificate of Incorporation, as amended, of the Corporation and
its directors' and officers' liability insurance policy provide for
indemnification of the directors and officers of the Registrant against
certain liabilities.
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The Corporation carries directors' and officers' liability insurance
coverage which insures its directors and officers and the directors and
officers of its subsidiaries in certain circumstances.
Reference is made to the indemnity provisions in the Underwriting
Agreement which is filed as Exhibit 1 to this Registration Statement.
Under each Trust Agreement, the Corporation will agree to indemnify
each of the Trustees of the Issuer with respect thereto or any
predecessor Trustee for the Issuer, and to hold such Trustees harmless
against any loss, damage, claim, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the Trust Agreements, 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 under the Trust Agreements.
<TABLE>
<CAPTION>
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ------------- -------------------------------------------------------------------------------------------
<S> <C>
1 Form of Underwriting Agreement*
3(a) Certificate of Incorporation of Dime Bancorp, Inc. (the "Corporation"), incorporated by
reference to Appendix A to the Joint Proxy Statement-Prospectus filed under cover of the
Company's Registration Statement on Form S-4 (No. 33-86002)
3(b) Amendment to Certificate of Incorporation of the Corporation, dated June 14, 1995,
incorporated by reference to Exhibit 3(ii) to the Company's Annual Report on form 10-K
for the fiscal year ended December 31, 1995
3(c) By-laws of the Corporation, incorporated by reference to the Corporation's Annual Report
on Form 10-K for the fiscal year ended December 31, 1996, Exhibit 3(iii), filed with the
Commission on March 31, 1997 (File No. 1-13094)**
4(a) Form of Junior Subordinated Indenture, dated as of , 1997, between the
Corporation and The Chase Manhattan Bank, as Debenture Trustee*
4(b) Certificate of Trust of Dime Capital Trust I*
4(c) Trust Agreement of Dime Capital Trust I*
4(d) Certificate of Trust of Dime Capital Trust II*
4(e) Trust Agreement of Dime Capital Trust II*
4(f) Form of Amended and Restated Trust Agreement of Dime Capital Trust I and II*
4(g) Form of Capital Security Certificate for Dime Capital Trust I and II (included as Exhibit
D of Exhibit 4(h))
4(h) Form of Guarantee Agreement for Dime Capital Trust I and II*
5(a) Opinion of Sullivan & Cromwell, Esq. as to legality of the Junior Subordinated Debentures
and the Guarantees to be issued by the Corporation*
5(b) Opinion of Special Delaware Counsel as to legality of the Capital Securities to be issued by
Dime Capital Trust I*
5(c) Opinion of Special Delaware Counsel as to legality of the Capital Securities to be issued by
Dime Capital Trust II (included in 5(b))*
</TABLE>
II-2
<PAGE>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ------------- ---------------------------------------------------------------
8 Opinion of Sullivan & Cromwell as to certain federal income tax
matters*
12 Computation of ratio of earnings to fixed charges*
23(a) Consent of KPMG Peat Marwick LLP
23(b) Consent of Sullivan & Cromwell (included in 5(a))*
23(c) Consent of Sullivan & Cromwell (included in 5(b))*
23(d) Consent of Sullivan & Cromwell (included in 5(d))
23(e) Consent of Sullivan & Cromwell (included in 8)
24 Power of Attorney (included as part of the signature page)*
25(a) Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee under the Junior Subordinated Indenture*
25(b) Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee under the Amended and Restated Trust Agreement of
Dime Capital Trust I*
25(c) Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee under the Amended and Restated Trust Agreement of
Dime Capital Trust II*
25(d) Form T-1 Statement of Eligibility of The Chase Manhattan Bank
under the Guarantee for the benefit of the holders of Capital
Securities of Dime Capital Trust I*
25(e) Form T-1 Statement of Eligibility of Th e Chase Manhattan Bank
under the Guarantee for the benefit of the holders of Capital
Securities of Dime Capital Trust II*
____________________
* To be filed by amendment.
** Incorporated by reference.
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of a Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Securities Exchange Act") 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
each Registrant pursuant to the provisions described under Item 15 above,
or otherwise, each Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by each Registrant of expenses incurred or paid by a
director, officer or controlling person of each Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, each Registrant will, unless in
II-3
<PAGE>
the opinion of its counsel the matter has been settled by the controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
Each of the undersigned Registrants hereby also undertakes:
(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;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereto) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimate maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective 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 paragraphs (1)(i) and (1)(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
that are incorporated by reference in this Registration Statement.
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the Securities Act, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, 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.
(4) to provide to the underwriter at the closing specified in the
underwriting agreement certificates in such denominations and registered
in such names as required by the underwriter to permit prompt delivery to
each purchaser.
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<PAGE>
(5) that, for the purposes of determining any liability under the
Securities Act:
(i) The information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(ii) Each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Dime Bancorp, Inc. certifies that it has reasonable grounds to believe
that 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, State of
New York, on the ____ day of April, 1997.
DIME BANCORP, INC.
By /s/ Lawrence J. Toal
------------------------------
(Lawrence J. Toal)
(Chief Executive Officer, President and
Chief Operating Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Lawrence J. Toal and Gene C.
Brooks, or any one of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign and
execute on behalf of the undersigned this Registration Statement and any
and all amendments hereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection with such Registration
Statement, as fully to all intents and purposes as he/she might or could
do in person, and does hereby ratify and confirm all that said attorneys-
in-fact and agents, or their substitutes or resubstitutes, may lawfully
do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AS OF APRIL __, 1997.
SIGNATURE TITLE
- ------------------------------- --------------------------------------------
/s/ Lawrence J. Toal Chief Executive Officer, President, Chief
- ------------------------------- Operating Officer and a Director (Principal
(Lawrence J. Toal) Executive Officer)
/s/ James M. Large, Jr. Chairman of the Board
- -------------------------------
(James M. Large, Jr.)
/s/ Derrick D. Cephas A Director
- -------------------------------
(Derrick D. Cephas)
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<PAGE>
/s/ Frederick C. Chen A Director
- -------------------------------
(Frederick C. Chen)
/s/ J. Barclay Collins II A Director
- -------------------------------
(J. Barclay Collins II)
/s/ Richard W. Dalrymple A Director
- -------------------------------
(Richard W. Dalrymple)
/s/ E. Charlotte Fanta A Director
- -------------------------------
(E. Charlotte Fanta)
/s/ James F. Fulton A Director
- -------------------------------
(James F. Fulton)
/s/ Murray Handwerker A Director
- -------------------------------
(Murray Handwerker)
/s/ Virginia M. Kopp A Director
- -------------------------------
(Virginia M. Kopp)
/s/ John Morning A Director
- -------------------------------
(John Morning)
/s/ Margaret G. Osmer-McQuade A Director
- -------------------------------
(Margaret G. Osmer-McQuade)
/s/ Sally Hernandez-Pinero A Director
- -------------------------------
(Sally Hernandez-Pinero)
/s/ Dr. Paul A. Qualben A Director
- -------------------------------
(Dr. Paul A. Qualben)
/s/ Eugene G. Schulz, Jr. A Director
- -------------------------------
(Eugene G. Schulz, Jr.)
/s/ Howard Smith A Director
- -------------------------------
(Howard Smith)
/s/ Dr. Norman R. Smith A Director
- -------------------------------
(Dr. Norman R. Smith)
II-7
<PAGE>
/s/ Ira T. Wender A Director
- -------------------------------
(Ira T. Wender)
/s/ Harold E. Reynolds Senior Vice President and Controller
- ------------------------------- (Principal Financial Officer)
(Harold E. Reynolds)
Pursuant to the requirements of the Securities Act of 1933, Dime Capital
Trust I 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
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York, State of New York, on
the ____ day of April, 1997.
DIME CAPITAL TRUST I
By Dime Bancorp, Inc.
as Depositor
By /s/ Lawrence J. Toal
-------------------------------
(Lawrence J. Toal)
(Chief Executive Officer, President and
Chief Operating Officer)
Pursuant to the requirements of the Securities Act of 1933, Dime
Capital Trust II 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 Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in The City of New York, State of
New York, on the ____ day of April, 1997.
DIME CAPITAL TRUST II
By Dime Bancorp, Inc.
as Depositor
By /s/ Lawrence J. Toal
-----------------------------
(Lawrence J. Toal)
(Chief Executive Officer, President and
Chief Operating Officer)
II-8
<PAGE>
Exhibit 23(a)
[KPMG Peat Marwick LLP Letterhead]
The Board of Directors
Dime Bancorp, Inc.
INDEPENDENT AUDITORS' CONSENT
We consent to the use of our report dated January 27, 1997,
incorporated by reference in the Registration Statement on Form S-3 of
Dime Bancorp, Inc., relating to our audit of the consolidated statements
of financial condition of Dime Bancorp, Inc. and subsidiaries 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 to the
references to our Firm under the headings "Selected Consolidated
Financial Data" and "Experts" in the Registration Statement. Our report
included an explanatory paragraph that described a change in the method
of accounting for goodwill, as discussed in the notes to those
statements.
KPMG PEAT MARWICK LLP
New York, New York
April 4, 1997
