<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
April 29, 1997
DIME BANCORP, INC.
----------------------------------
(Exact Name of Registrant as Specified in Charter)
DELAWARE
--------
(State or Other Jurisdiction of Incorporation)
1-13094 11-3197414
------- ----------
(Commission File Number) (IRS Employer
Identification No.)
589 Fifth Avenue, New York, NY 10017
------------------------------ -----
(Address of Principal (Zip Code)
Executive Offices)
(212) 326-6170
--------------
(Registrant's telephone number,
including area code)
<PAGE>
Item 5. Other Events
On May 6, 1997, Dime Capital Trust I, a Delaware statutory business
trust (the "Trust"), issued 200,000 of its 9.33% Capital Securities, Series A
(the "Capital Securities"), which represent preferred beneficial interests in
the Trust, in a public offering registered under the Securities Act of 1933, as
amended (Registration Statement Nos. 333-24629, -01 and -02). The sole asset of
the Trust is $206,186,000 in aggregate principal amount of the 9.33% Junior
Subordinated Deferrable Interest Debentures, Series A, of the Registrant. In
addition, the Registrant has guaranteed the obligations of the Trust under the
Capital Securities.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits
Exhibit
Number Description
- ------- -----------
1. Purchase Agreement, dated as of April 29, 1997, among Dime
Bancorp, Inc., Dime Capital Trust I, and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, BT
Securities Corporation and Lehman Brothers Inc.
4.1 Junior Subordinated Indenture, dated as of May 6, 1997,
between Dime Bancorp, Inc. and The Chase Manhattan Bank, as
Trustee.
4.2 Form of Certificate representing the 9.33% Junior Subordinated
Deferrable Interest Debentures, Series A, of Dime Bancorp,
Inc.
4.3 Amended and Restated Trust Agreement, dated as of May 6, 1997,
of Dime Capital Trust I, among Dime Bancorp, Inc., as
Depositor, The Chase Manhattan Bank, as Property Trustee,
Chase Manhattan Bank Delaware, as Delaware Trustee, the
Administrative Trustees named therein and the Holders from
time to time of the Trust Securities.
4.4 Form of Certificate representing the 9.33% Capital Securities,
Series A, of Dime Capital Trust I.
4.5 Guarantee Agreement, dated as of May 6, 1997, between Dime
Bancorp, Inc., as Guarantor, and The Chase Manhattan Bank, as
Guarantee Trustee.
-2-
<PAGE>
4.6 Agreement as to Expenses and Liabilities, dated as of May 6,
1997, between Dime Bancorp, Inc. and Dime Capital Trust I.
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
DIME BANCORP, INC.
(Registrant)
Date: June 16, 1997 By: /s/ Gene C. Brooks
-------------------------------
Name: Gene C. Brooks
Title: Executive Vice President
and General Counsel
-3-
<PAGE>
EXHIBIT INDEX
---------------
Exhibit No. Description
- ---------- -----------
1 Purchase Agreement, dated as of April 29, 1997,
among Dime Bancorp, Inc., Dime Capital Trust I and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, BT Securities Corporation and
Lehman Brothers Inc.
4.1 Junior Subordinated Indenture, dated as of May 6,
1997, between Dime Bancorp, Inc. and The Chase
Manhattan Bank, as Trustee.
4.2 Form of Certificate representing the 9.33% Junior
Subordinated Deferrable Interest Debentures, Series
A, of Dime Bancorp, Inc.
4.3 Amended and Restated Trust Agreement, dated as of
May 6, 1997, of Dime Capital Trust I, among Dime
Bancorp, Inc., as Depositor, The Chase Manhattan
Bank, as Property Trustee, Chase Manhattan Bank
Delaware, as Delaware Trustee, the Administrative
Trustees named therein and the Holders from time to
time of the Trust Securities.
4.4 Form of Certificate representing the 9.33% Capital
Securities, Series A, of Dime Capital Trust I.
4.5 Guarantee Agreement, dated as of May 6, 1997,
between Dime Bancorp, Inc., as Guarantor, and The
Chase Manhattan Bank, as Guarantee Trustee.
4.6 Agreement as to Expenses and Liabilities, dated
as of May 6, 1997, between Dime Bancorp, Inc. and
Dime Capital Trust I.
-4-
<PAGE>
Exhibit 1
================================================================================
DIME CAPITAL TRUST I
9.33% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
PURCHASE AGREEMENT
Dated: April 29, 1997
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
<S> <C>
SECTION 1. Representations and Warranties......................... 3
(a) Representations and Warranties of the Offerors.......... 3
(i) Compliance with Registration Requirements.......... 3
(ii) Incorporated Documents............................. 4
(iii) Independent Accountants............................ 4
(iv) Financial Statements............................... 5
(v) No Material Adverse Change in Business............. 5
(vi) Good Standing of the Company....................... 5
(vii) Good Standing of Subsidiaries...................... 5
(viii) Capitalization..................................... 6
(ix) Good Standing of the Trust......................... 6
(x) Authorization of Common Securities................. 6
(xi) Authorization of Capital Securities................ 7
(xii) Authorization of Agreement......................... 7
(xiii) Authorization of Trust Agreement................... 7
(xiv) Authorization of Guarantee......................... 7
(xv) Authorization of Indenture......................... 7
(xvi) Authorization of Junior Subordinated Debentures.... 7
(xvii) Administrative Trustees............................ 8
(xix) Absence of Defaults and Conflicts.................. 8
(xxii) Absence of Labor Dispute........................... 9
(xxiii) Absence of Proceedings............................. 9
(xxiii) Exhibits........................................... 9
(xxv) Absence of Further Requirements.................... 9
(xxvi) Possession of Licenses and Permits................. 9
(xxvii) Title to Property.................................. 10
(xxix) Environmental Laws................................. 10
(xxx) Not an Investment Company.......................... 11
(xxxi) No Manipulation.................................... 11
(b) Officer's Certificates................................. 11
SECTION 2. Sale and Delivery to Underwriters; Closing............ 11
(a) Capital Securities....................................... 11
(b) Payment.................................................. 11
(c) Compensation of Underwriters............................. 12
(d) Denominations; Registration.............................. 12
SECTION 3. Covenants of the Offerors............................. 12
(a) Compliance with Securities Regulations and
Commission Requests.................................... 12
(b) Filing of Amendments..................................... 13
(c) Delivery of Registration Statements...................... 13
(d) Delivery of Prospectuses................................. 13
(e) Continued Compliance with Securities Laws................ 13
</TABLE>
i
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<TABLE>
<CAPTION>
<S> <C>
(f) Blue Sky Qualifications.................................. 14
(g) Rule 158................................................. 14
(h) Restriction on Sale of Securities........................ 14
(i) Reporting Requirements................................... 15
(k) DTC Settlement........................................... 15
(l) Use of Proceeds.......................................... 15
SECTION 4. Payment of Expenses................................... 15
(a) Expenses................................................. 15
(b) Termination of Agreement................................. 16
SECTION 5. Conditions of Underwriters' Obligations............... 16
(a) Effectiveness of Registration Statement.................. 16
(b) Opinion of Counsel for Company........................... 16
(c) Opinion of Special Delaware Counsel to the Offerors...... 16
(d) Opinion of Counsel for The Chase Manhattan Bank
and Chase Manhattan Bank Delaware....................... 16
(e) Opinion of Special Tax Counsel to Offerors............... 17
(f) Opinion of Counsel for Underwriters...................... 17
(g) Certificates............................................. 17
(h) Accountant's Comfort Letter.............................. 18
(i) Bring-down Comfort Letter................................ 18
(j) Maintenance of Rating.................................... 18
(k) No Objection............................................. 18
(l) Additional Documents..................................... 18
(m) Termination of Agreement................................. 18
SECTION 6. Indemnification........................................ 19
(a) Indemnification of the Underwriters...................... 19
(b) Indemnification by the Underwriters...................... 20
(c) Actions against Parties; Notification.................... 20
SECTION 7. Contribution........................................... 21
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery..................................... 22
SECTION 9. Termination of Agreement............................... 22
(a) Termination; General..................................... 23
(b) Liabilities.............................................. 23
SECTION 10. Default by One or More of the Underwriters............ 23
SECTION 11. Default by the Offerors............................... 24
SECTION 12. Notices............................................... 24
SECTION 13. Parties............................................... 24
</TABLE>
ii
<PAGE>
SECTION 14. GOVERNING LAW AND TIME................................ 24
SECTION 15. Effect of Headings.................................... 24
SCHEDULE A.
SCHEDULE B.
SCHEDULE C.
iii
<PAGE>
DIME CAPITAL TRUST I
9.33% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
PURCHASE AGREEMENT
------------------
April 29, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
BT SECURITIES CORPORATION
LEHMAN BROTHERS INC.,
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-l209
Ladies and Gentlemen:
Dime Capital Trust I (the "Trust"), a statutory business trust organized
-----
under the Business Trust Act (the "Delaware Act") of the State of Delaware
------------
(Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801 et seq.)),
and Dime Bancorp, Inc., a Delaware corporation (the "Company" and, together with
-------
the Trust, the "Offerors"), confirm their agreement as set forth herein with
--------
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), BT Securities Corporation ("BT"), Lehman Brothers Inc.
- ---------------
("Lehman") and each of the other underwriters named in Schedule A hereto
----------
(collectively, the "Underwriters," which term shall also include any underwriter
------------
substituted as hereinafter provided in Section 10 hereof), for whom Merrill
Lynch, BT and Lehman are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Trust and the
- ----------------
purchase by the Underwriters, acting severally and not jointly, of $200,000,000
in aggregate liquidation amount of 9.33% Capital Securities, Series A
(liquidation amount $1,000 per Capital Security), of the Trust (the "Capital
-------
Securities") on the terms and conditions hereinafter set forth. The Capital
- ----------
Securities will be guaranteed on a subordinated basis by the Company with
respect to distributions and payments upon liquidation, redemption and otherwise
pursuant to the Series A Guarantee (the "Guarantee"), to be dated on or about
---------
May 6, 1997, between the Company and The Chase Manhattan Bank, as trustee (the
"Guarantee Trustee"). The Capital Securities issued in book-entry form will be
- ------------------
issued to Cede & Co., as nominee of the Depository Trust Company
<PAGE>
("DTC"), pursuant to a letter agreement to be dated as of the Closing Time (as
---
defined in Section 2(b)) (the "DTC Agreement"), among the Trust, the Guarantee
-------------
Trustee and DTC.
The entire proceeds from the sale of the Capital Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), and will be used by the Trust
-----------------
to purchase $206,186,000 aggregate principal amount of 9.33% Junior Subordinated
Deferrable Interest Debentures, Series A, due 2027 issued by the Company (the
"Junior Subordinated Debentures"). The Capital Securities and the Common
- -------------------------------
Securities will be issued pursuant to the Amended and Restated Trust Agreement,
to be dated on or about May 6, 1997 (the "Trust Agreement"), among the Company,
---------------
as depositor, the Administrative Trustees named therein (the "Administrative
--------------
Trustees"), The Chase Manhattan Bank, as property trustee (the "Property
- -------- --------
Trustee"), and Chase Manhattan Bank Delaware, as Delaware trustee (the "Delaware
--------
Trustee," and, together with the Property Trustee and the Administrative
- -------
Trustees, the "Trustees"). The Junior Subordinated Debentures will be issued
--------
pursuant to an indenture, to be dated on or about May 6, 1997 (the "Indenture"),
---------
between the Company and The Chase Manhattan Bank, as trustee (the "Debenture
---------
Trustee").
- -------
The Capital Securities, the Guarantee and the Junior Subordinated
Debentures are hereinafter collectively referred to as the "Securities." The
----------
Indenture, the Trust Agreement, the Guarantee, the DTC Agreement and this
Agreement are hereinafter referred to collectively as the "Operative Documents."
-------------------
The Offerors understand that the Underwriters propose to make a public
offering of the Capital Securities (as guaranteed by the Guarantee) as soon as
the Representatives deem advisable after this Agreement has been executed and
delivered and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act").
--------
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-24629) covering the
----------
registration of preferred securities of the Trust and Dime Capital Trust II,
Company guarantees with respect to such preferred securities and junior
subordinated deferrable interest debentures of the Company, including the
Securities, from time to time in accordance with Rule 415 under the Securities
Act of 1933, as amended (the "1933 Act"), including the related preliminary
--------
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Offerors will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
---------
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
--------------------
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
-----------
(ii) if the Offerors have elected to rely upon Rule 434 ("Rule 434") of the 1933
--------
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
----------
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
---------------------
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
--------
Information." Each prospectus used before such registration statement became
- -----------
effective, and any prospectus that
2
<PAGE>
omitted, as applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "preliminary prospectus." Such
----------------------
registration statement, including the exhibits thereto, schedules thereto, if
any, and the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time it became effective and including the
Rule 430A Information or the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
----------------------
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
----
462(b) Registration Statement," and after such filing the term "Registration
- -----------------------------
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities, consists
of (i) a "Base Prospectus," which is the prospectus included in the Registration
---------------
Statement, and (ii) a "Prospectus Supplement," relating specifically to the
---------------------
offering of the Securities, in the form first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b) of the 1933 Act, and the Base
Prospectus and the Prospectus Supplement are collectively referred to herein as
the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer
----------
to the preliminary prospectus dated April 25, 1997 together with the Term Sheet,
and all references in this Agreement to the date of the Prospectus shall mean
the date of the Term Sheet.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
----
Act"), which is incorporated by reference in the Registration Statement, such
- ---
preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties of the Offerors. The Offerors jointly
----------------------------------------------
and severally represent and warrant to each Underwriter as of the date
hereof and as of the Closing Time referred to in Section 2(b) hereof, as
follows:
(i) Compliance with Registration Requirements. The Offerors meet
-----------------------------------------
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Offerors, are contemplated by the
3
<PAGE>
Commission and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was filed
and at the Closing Time, included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Offerors will comply with the requirements of Rule 434.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, any
post-effective amendment to the Registration Statement, the Prospectus
or any amendment or supplement to the Prospectus made in reliance upon
and in conformity with information furnished to the Company or the
Trust in writing by any Underwriter through Merrill Lynch expressly
for use in the Registration Statement, the Prospectus or any such
amendment or supplement.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and
the 1933 Act Regulations.
(ii) Incorporated Documents. The documents incorporated or deemed
----------------------
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
--------------------
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus
was issued and at the Closing Time, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which such statements were made, not misleading.
(iii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included in the
Registration
4
<PAGE>
Statement are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iv) Financial Statements. The consolidated statements of
--------------------
financial condition, consolidated statements of income, consolidated
statements of changes in stockholders' equity and consolidated
statements of cash flows included in the Registration Statement and
the Prospectus, together with the related schedules and notes (the
"Financial Statements"), present fairly in all material respects the
--------------------
consolidated financial position, results of operations, changes in
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries at the dates indicated or for the periods
specified, as the case may be, subject in the case of unaudited
balance sheets and statements to normal year-end audit adjustments;
said Financial Statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
----
consistent basis throughout the periods involved, except as may be
noted therein, subject in the case of unaudited balance sheets and
statements to normal year-end audit adjustments and the limited scope
of the notes thereto.
(v) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change, or development involving a
prospective material adverse change, in the financial condition,
results of operation or stockholders' equity of the Trust, or the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
----------------
Effect"), (B) there have been no transactions entered into by the
------
Trust, the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Trust, or the Company and its subsidiaries, considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Trust or the Company on any class
of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business in all material respects as described in the Prospectus and
to enter into and perform its obligations under the Operative
Documents; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. The Dime Savings Bank of New
-----------------------------
York, FSB (the "Bank"), has been duly organized and is validly
----
existing as a
5
<PAGE>
federally chartered stock savings bank and is a member in good
standing of the Federal Home Loan Bank of New York; the Bank's deposit
accounts are insured up to applicable limits by the Savings
Association Insurance Fund or the Bank Insurance Fund, each of the
Federal Deposit Insurance Corporation; and no proceeding for the
termination or revocation of such insurance is pending or, to the
knowledge of the Company or the Bank, threatened. The Bank is the
only "significant subsidiary" of the Company (as such term is defined
----------------------
in Rule 1-02 of Regulation S-X) and has corporate power and authority
to own, lease and operate its properties and to conduct its business
in all material respects as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of the Bank has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of the Bank
was issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary. The only subsidiaries of the
Company are the subsidiaries listed on Schedule B hereto.
----------
(viii) Capitalization. The Company had at the date indicated a
--------------
duly authorized and outstanding capitalization as set forth in the
Registration Statement.
(ix) Good Standing of the Trust. The Trust has been duly created
--------------------------
and is validly existing as a business trust in good standing under the
Delaware Act and, at the Closing Time, will have the power and
authority to own, lease and operate its properties and to conduct its
business in all material respects as described in the Prospectus and
to enter into and perform its obligations under the Operative
Documents, as applicable, and the Capital Securities; the Trust is not
a party to or otherwise bound by any material agreement other than
this Agreement and those described in the Registration Statement; and
the Trust is and will be treated as a consolidated subsidiary of the
Company under GAAP.
(x) Authorization of Common Securities. At the Closing Time, the
----------------------------------
Common Securities will have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company
against payment therefor as set forth herein, will be validly issued
and will represent undivided beneficial interests in the assets of the
Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
6
<PAGE>
(xi) Authorization of Capital Securities. As of the Closing Time,
-----------------------------------
the Capital Securities will have been duly authorized by the Trust
and, when issued and delivered against payment therefor as provided
herein, will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will
conform in all material respects to the description thereof contained
in the Registration Statement; and the issuance of the Capital
Securities will not be subject to preemptive or other similar rights.
(xii) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Offerors.
(xiii) Authorization of Trust Agreement. The Trust Agreement has
--------------------------------
been duly authorized by the Company and duly qualified under the 1939
Act and, at the Closing Time, will have been duly executed and
delivered by the Company and the Trustees, and assuming due
authorization, execution and delivery of the Trust Agreement by the
Trustees, the Trust Agreement will, at the Closing Time, be a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to (A) the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally, (B) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and (C)
general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) and the availability
of equitable remedies (collectively, the "Enforceability Exceptions").
-------------------------
(xiv) Authorization of Guarantee. The Guarantee has been duly
--------------------------
authorized by the Company and duly qualified under the 1939 Act and,
at the Closing Time, the Guarantee will have been duly executed and
delivered by the Company, and will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the Enforceability Exceptions;
and the Guarantee will conform in all material respects to the
descriptions thereof in the Registration Statement.
(xv) Authorization of Indenture. The Indenture has been duly
--------------------------
authorized by the Company and duly qualified under the 1939 Act and,
at the Closing Time, will have been duly executed and delivered by the
Company and will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject to the Enforceability Exceptions.
(xvi) Authorization of Junior Subordinated Debentures. The Junior
-----------------------------------------------
Subordinated Debentures have been duly authorized by the Company and,
at the Closing Time, will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered to the Trust against payment therefor as described in the
Registration Statement, will constitute valid and binding obligations
of the Company enforceable against the
7
<PAGE>
Company in accordance with their terms, subject to the Enforceability
Exceptions; and the Junior Subordinated Debentures will be in the form
contemplated by, and entitled to the benefits of, the Indenture and
will conform in all material respects to the description thereof in
the Registration Statement.
(xvii) Administrative Trustees. At the Closing Time, each of the
-----------------------
Administrative Trustees of the Trust will be an officer of the Company
and will have been duly authorized by the Company to execute and
deliver the Trust Agreement.
(xviii) Absence of Defaults and Conflicts. The Trust is not in
---------------------------------
violation of the certificate of trust filed with the State of Delaware
on April 4, 1997 (the "Trust Certificate") or the Trust Agreement,
-----------------
neither the Company nor any of its subsidiaries is in violation of its
charter or by-laws, and none of them are in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties or assets may be subject (collectively, "Agreements and
--------------
Instruments"), except for such defaults that would not result in a
-----------
Material Adverse Effect; the execution and delivery of the Operative
Documents by the Trust or the Company, as the case may be, the
issuance and delivery of the Securities, the consummation by the
Offerors of the transactions contemplated in the Operative Documents,
and compliance by the Offerors with their respective obligations under
the Operative Documents to which they are party have been duly
authorized by all necessary corporate action on the part of the
Company and, at the Closing Time, will have been duly authorized by
all necessary action on the part of the Trust, and do not and will
not, whether with or without the giving of notice or passage of time
or both, (A) result in any violation of the charter or by-laws of the
Company or any subsidiary thereof or the Trust Agreement or the Trust
Certificate or (B) conflict with or constitute a breach of any of the
terms or provisions of, or constitute a default or Repayment Event (as
defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Trust,
the Company or any subsidiary thereof pursuant to, (1) the Agreements
and Instruments, except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not result in a Material
Adverse Effect or (2) any existing applicable law, rule, regulation,
judgment, order, writ or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction
over the Trust, the Company or any subsidiary thereof or any of their
respective properties, assets or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder
---------------
of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
8
<PAGE>
(xix) Absence of Labor Dispute. No labor dispute with the
------------------------
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Offerors are not aware of any
existing or imminent labor disturbance by the employees of any of
their or their respective subsidiaries' principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xx) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending or, to
the knowledge of the Trust or the Company, threatened against or
affecting the Trust or the Company or any subsidiary, which,
individually or in the aggregate for all such actions, suits,
proceedings, inquiries or investigations, is required to be disclosed
in the Registration Statement (other than as disclosed therein), or
which might reasonably be expected to result in a Material Adverse
Effect (other than as disclosed in the Registration Statement), or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof (other than as disclosed in the
Registration Statement) or the consummation of the transactions
contemplated by the Operative Documents or the performance by the
Trust or the Company of its obligations hereunder or thereunder.
(xxi) Exhibits. There are no contracts or documents which are
--------
required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein, or to be filed as
exhibits thereto, which have not been so described or filed as
required.
(xxii) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or
the Trust of its respective obligations hereunder in connection with
the offering, issuance or sale of the Capital Securities hereunder or
the consummation of the transactions contemplated by the Operative
Documents, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xxiii) Possession of Licenses and Permits. Each of the Offerors
----------------------------------
and each subsidiary of the Company possesses such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
---------------------
local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it; the Offerors and such subsidiaries
are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all
of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not
9
<PAGE>
have a Material Adverse Effect; and neither Offeror nor any of such
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xxiv) Title to Property. Each of the Offerors and each subsidiary
-----------------
of the Company has good and marketable title to all real property
reflected in the most recent balance sheet included in the Prospectus
as owned by it and good title to all other properties reflected in the
most recent balance sheet included in the Prospectus as owned by it,
in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (A) are described in the Prospectus or (B) do not,
singly or in the aggregate, materially interfere with the use made and
proposed to be made of such property by the Trust, or the Company and
its subsidiaries or, with respect to any such real property, render
title unmarketable as to a material part thereof; and all of the
leases and subleases material to the business of the Trust, and the
Company and its subsidiaries considered as one enterprise, and under
which either Offeror or such subsidiaries holds properties described
in the Prospectus, are in full force and effect, and neither the
Offerors nor any such subsidiary has any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of
the Offerors or any such subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Offerors or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xxv) Environmental Laws. Except as described in the Registration
------------------
Statement or except as would not, singly or in the aggregate, result
in a Material Adverse Effect: (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
-------------------
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
-------------
Laws"), (B) the Company and its subsidiaries have all permits,
----
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or
10
<PAGE>
proceedings relating to any Environmental Law against the Company or
any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or redemption, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or
any Environmental Laws.
(xxvi) Not an Investment Company. Neither the Company nor the
-------------------------
Trust is, or following consummation of the transactions contemplated
hereby and the application of the net proceeds as described in the
Prospectus will be, an "investment company" or a company "controlled
by" an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(xxvii) No Manipulation. The Offerors have not taken and will not
---------------
take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result under the 1934 Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company or the Trust to facilitate the sale or resale
of the Capital Securities.
(b) Officer's Certificates. Any certificate signed by any
----------------------
Administrative Trustee of the Trust or any officer of the Company or
any of its subsidiaries delivered to the Representatives or to counsel
for the Underwriters shall be deemed a representation and warranty by
the Trust or the Company, as the case may be, to each Underwriter as
to the matters covered thereby, without personal liability for the
officer signing such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Capital Securities. On the basis of the representations and
------------------
warranties herein contained and subject to the terms and conditions
herein set forth, the Trust agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Trust, at the price per Capital
Security set forth in Schedule C hereto, the number of Capital
----------
Securities set forth in Schedule A opposite the name of the
Underwriter, plus any additional number of Capital Securities which
such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof, subject, in each case, to such
adjustments among the Underwriters as the Representatives in their
sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b) Payment. Payment of the purchase price and delivery of
-------
certificates for the Capital Securities shall be made at the offices
of Cleary, Gottlieb, Steen & Hamilton, One Liberty Plaza, New York,
New York, 10006, or at such other place as shall be agreed upon by the
Representatives and the Offerors, at 10:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on
any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not
later than ten business days after such date as shall be agreed
11
<PAGE>
upon by the Representatives and the Offerors (such time and date of payment
and delivery being herein called the "Closing Time").
------------
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust against delivery
to the Representatives for the respective accounts of the Underwriters of
certificates for the Capital Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for
their account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Capital Securities that it has agreed to purchase.
Merrill Lynch, individually and not as representative of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for
the Capital Securities to be purchased by any Underwriter whose funds have
not been received by the Closing Time but such payment shall not relieve
such Underwriter from its obligations hereunder.
(c) Compensation of Underwriters. As compensation to the Underwriters
----------------------------
for their commitment hereunder and in view of the fact that the proceeds of
the sale of the Capital Securities will be used to purchase Junior
Subordinated Debentures of the Company, the Company hereby agrees to pay at
the Closing Time to the Representatives, for the account of the several
Underwriters, in immediately available funds, an amount of $16.25 per
Capital Security to be delivered by the Trust hereunder at the Closing
Time.
(d) Denominations; Registration. The Capital Securities shall be
---------------------------
issued in such denominations as the Representatives may request in writing
at least one full business day before the Closing Time. The certificates
representing the Capital Securities shall be registered in the name of Cede
& Co. pursuant to the DTC Agreement and shall be made available for
examination and packaging by the Representatives in the City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time.
SECTION 3. Covenants of the Offerors. The Offerors covenant with each
-------------------------
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
--------------------------------------------------------------
The Offerors, subject to Section 3(b) hereof, will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Representatives promptly, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. The Offerors will promptly
effect the filings necessary
12
<PAGE>
pursuant to Rule 424(b) and will take such steps as they deem necessary to
ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, they will promptly file such prospectus. The
Offerors will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. Each of the Offerors will give the
--------------------
Representatives notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters object.
(c) Delivery of Registration Statements. The Offerors have furnished
-----------------------------------
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters.
(d) Delivery of Prospectuses. The Offerors will furnish to each
------------------------
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request.
(e) Continued Compliance with Securities Laws. The Offerors have
-----------------------------------------
complied and will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations to the extent necessary to permit
the completion of the distribution of the Capital Securities as
contemplated in the Operative Documents. If at any time when a prospectus
is required by the 1933 Act to be delivered in connection with sales of the
Capital Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of the Underwriters or the
Offerors, based upon advice of counsel, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus will not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or if it shall be necessary, in the opinion of such party,
based upon the advice of counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the
13
<PAGE>
1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Offerors will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Offerors will use their best efforts,
-----------------------
in cooperation with the Underwriters, to qualify the Capital Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions as the Representatives may designate and to maintain
such qualifications in effect for a period of not less than one year from
the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that neither Offeror
shall be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Capital
Securities have been so qualified, the Offerors will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
--------
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Restriction on Sale of Securities. During a period of 45 days from
---------------------------------
the date of the Prospectus, neither the Trust nor the Company will, without
the prior written consent of Merrill Lynch, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any Capital
Security or any securities convertible into or exchangeable or exercisable
for Capital Securities or the Junior Subordinated Debentures or any
securities substantially similar (including provisions with respect to the
deferral of interest) to the Junior Subordinated Debentures or any security
substantially similar to the Capital Securities or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of
Capital Securities, any security convertible into or exchangeable or
exercisable for Capital Securities or the Junior Subordinated Debentures or
any securities substantially similar (including provisions with respect to
the deferral of interest) to the Junior Subordinated Debentures, whether
any such swap or transaction described in (i) or (ii) above is to be
settled by delivery of Capital Securities, Junior Subordinated Debentures
or such other securities, in cash or otherwise (except for the Securities
issued pursuant to this Agreement).
14
<PAGE>
(i) Reporting Requirements. The Offerors, during the period when the
----------------------
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations and the Company will cause the Bank to file all
documents required to be filed with any supervisory, regulatory,
administrative or governmental agency, body or authority, whether pursuant
to the 1934 Act and the 1934 Act Regulations or otherwise (except reports
to any bank or thrift regulatory agencies prepared on a confidential
basis), except when the failure to file such documents could not reasonably
be expected to result, directly or indirectly, in a Material Adverse
Effect.
(j) DTC Settlement. The Offerors will cooperate with the
--------------
Representatives and use their reasonable efforts to permit the Capital
Securities to be eligible for clearance and settlement through the
facilities of DTC.
(k) Use of Proceeds. The Trust will use the net proceeds received by
---------------
it from the sale of the Capital Securities, and the Company will use the
proceeds received by it from the sale of the Junior Subordinated
Debentures, in all material respects in the manners specified in the
Registration Statement under "Use of Proceeds".
SECTION 4. Payment of Expenses. (a) Expenses. The Company covenants
------------------- --------
and agrees with the several Underwriters that the Company will pay all
expenses incident to the performance of its and the Trust's obligations
under this Agreement, including (i) the preparation, printing and filing of
the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Agreement, any Agreement
among Underwriters, the Operative Documents and such other documents as may
be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of
the certificates for the Capital Securities to the Underwriters, (iv) the
fees and disbursements of the Company's and the Trust's counsel,
accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky survey and any supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheets and of the Prospectus and any amendments or
supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky survey and any supplement thereto,
(viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review
by the National Association of Securities Dealers, Inc. (the "NASD") of the
----
terms of the sale of the Securities, (x) the rating agencies' fees, and
(xi) the fees and expenses of any trustee appointed under any of the
Operative Documents, including the reasonable fees and disbursements of
counsel for such trustees in connection with the Operative Documents.
15
<PAGE>
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
Representatives in accordance with the provisions of Section 5, Section
9(a)(i) or Section 11 hereof, the Company shall reimburse the Underwriters
for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy, as of the
Closing Time, of the representations and warranties of the Offerors
contained in Section 1 hereof or in certificates of any trustee of the
Trust, officer of the Company or any of its subsidiaries delivered pursuant
to the provisions hereof, to the performance by the Offerors of their
respective covenants and other obligations hereunder to be performed at or
prior to the Closing Time, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
---------------------------------------
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements
of Rule 430A) or, if the Offerors have elected to rely upon Rule 434, a
Term Sheet shall have been filed with the Commission in accordance with
Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the
------------------------------
Representatives shall have received the favorable opinions, dated as of the
Closing Time, of Sullivan & Cromwell, special counsel for the Company, and
Gene C. Brooks, Esq., Executive Vice President and General Counsel for the
Company, in each instance in form and substance reasonably satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of
such opinions for each of the other Underwriters, collectively to the
effect set forth in Exhibit A hereto.
(c) Opinion of Special Delaware Counsel to the Offerors. At the
---------------------------------------------------
Closing Time, the Representatives shall have received the favorable
opinion, dated as of the Closing Time, of Richards, Layton & Finger,
special Delaware counsel to the Offerors, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters, to
the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for The Chase Manhattan Bank and Chase
---------------------------------------------------------
Manhattan Bank Delaware. At the Closing Time, the Representatives shall
-----------------------
have received the favorable opinion, dated as of the Closing Time, of
Pryor, Cashman, Sherman & Flynn,
16
<PAGE>
counsel for the Property Trustee, the Delaware Trustee, the Debenture
Trustee and the Guarantee Trustee, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters.
(e) Opinion of Special Tax Counsel to Offerors. At the Closing Time,
------------------------------------------
the Representatives shall have received an opinion, dated as of the Closing
Time, of Sullivan & Cromwell, special tax counsel to the Offerors,
substantially to the effect that the discussion set forth in the
Registration Statement under the caption "Certain Federal Income Tax
Consequences" is a fair and accurate summary of the matters addressed
therein, based upon current law and the assumptions stated or referred to
therein. Such opinion may be conditioned on, among other things, the
initial and continuing accuracy of the facts, financial and other
information, covenants and representations set forth in certificates of
officers of the Company and other documents deemed necessary for such
opinion. Such opinion shall be in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters.
(f) Opinion of Counsel for Underwriters. At the Closing Time, the
-----------------------------------
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Cleary, Gottlieb, Steen & Hamilton, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, with respect to such matters as they may
reasonably request. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of trustees of the Trust,
officers of the Company and its subsidiaries and certificates of public
officials.
(g) Certificates. At the Closing Time, there shall not have been,
------------
since the date hereof or since the respective dates as of which information
is given in the Prospectus, any material adverse change, or development
involving a prospective material adverse change, in the financial
condition, results of operations or stockholders' equity of the Trust, or
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and the Representatives
shall have received a certificate signed by the President or a Vice
President of the Company and by the chief financial or chief accounting
officer of the Company and a certificate of an Administrative Trustee of
the Trust, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of the Closing Time, (iii)
the Offerors have complied with all agreements and satisfied all conditions
on their part to be performed or satisfied at or prior to the Closing Time,
and (iv) no stop order suspending the effectiveness of the
17
<PAGE>
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are contemplated by the Commission.
(h) Accountant's Comfort Letter. At the time of the execution of this
---------------------------
Agreement, the Representatives shall have received from KPMG Peat Marwick
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter
for each of the other Underwriters, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter. At the Closing Time, the
-------------------------
Representatives shall have received from KPMG Peat Marwick LLP a letter,
dated as of the Closing Time, to the effect that it reaffirms the
statements made in the letter furnished pursuant to subsection (h) of this
Section, except that the specified date referred to shall be a date not
more than three business days prior to the Closing Time.
(j) Maintenance of Rating. At the Closing Time, the Capital Securities
---------------------
shall be rated at least Ba3 by Moody's Investors Service, Inc. and BB- by
Standard & Poor's Ratings Services, a division of McGraw Hill, Inc., and
the Trust shall have delivered to the Representatives a letter dated the
Closing Time, from each such rating agency, or other evidence satisfactory
to the Representatives, confirming that the Capital Securities have such
ratings; and between the date of this Agreement and the Closing Time, there
shall not have occurred a downgrading in the rating assigned to the Capital
Securities or any of the Company's other securities by any nationally
recognized statistical rating organization, and no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Capital Securities
or any of the Company's other securities.
(k) No Objection. The NASD shall not have raised any objection with
------------
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(l) Additional Documents. At the Closing Time, counsel for the
--------------------
Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Offerors in connection with the issuance and sale
of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Representatives and counsel for the
Underwriters.
(m) Termination of Agreement. If any condition specified in this
------------------------
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Offerors at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other
18
<PAGE>
party, except as provided in Section 4, and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of the Underwriters. The Offerors agree to jointly
-----------------------------------
and severally indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner
as set forth below:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that any such settlement is effected with the
written consent of the Offerors;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any act or failure to
act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Securities or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, liability, claim, damage or action arising
out of or based upon matters covered by clause (i) above (provided
that the Offerors shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of
competent jurisdiction that such any loss, liability, claim, damage or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct); and
(iv) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation
19
<PAGE>
or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i),
(ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information furnished
to the Offerors by any Underwriter through Merrill Lynch, expressly for use
in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided further that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter)
from whom the person asserting any such loss, liability, claim or damage
purchased Capital Securities if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented by the
Offerors if the Offerors shall have furnished any amendments or supplements
thereto) and a copy of the Prospectus (as so amended or supplemented),
which at such time had been provided to the Underwriters for their use,
shall not have been furnished to such person at or prior to the written
confirmation of sale of such Capital Securities to such person.
(b) Indemnification by the Underwriters. Each Underwriter severally
-----------------------------------
agrees to indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, the Trust, each of the
Trustees and each person, if any, who controls the Company or the Trust
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Offerors by such
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
-------------------------------------
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof
and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to
20
<PAGE>
Section 6(a) above, counsel to the indemnified parties shall be selected by
Merrill Lynch, and in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Offerors. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 6
or Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party (other than pursuant to the terms thereof) in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred
by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on
the one hand and the Underwriters on the other hand from the offering of
the Capital Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors
on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the
Capital Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of
the Capital Securities pursuant to this Agreement (before deducting
expenses) received by the Offerors and the total underwriting commission
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the Capital
Securities as set forth on such cover.
21
<PAGE>
The relative fault of the Offerors on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Offerors or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this
Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Capital Securities purchased by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each trustee of the Trust,
each officer of the Company and each trustee of the Trust who signed the
Registration Statement, and each person, if any, who controls the Company
or the Trust within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Company
and the Trust. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of
Capital Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement, or in certificates of officers of the Company or trustees of the
Trust submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or the
Trust, and shall survive delivery of the Capital Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
------------------------
22
<PAGE>
(a) Termination; General. The Representatives may terminate this
--------------------
Agreement, by notice to the Offerors, at any time at or prior to the
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change, or development involving a
prospective material adverse change, in the financial condition, results of
operations or stockholders' equity of the Trust, or the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Capital Securities or to
enforce contracts for the sale of the Capital Securities, or (iii) if
trading in any securities of the Company has been suspended or limited by
the Commission or the New York Stock Exchange, or if trading generally on
the American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
-----------
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further
that Sections 1, 6, 7 and 8 shall survive such termination and remain in
full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at the Closing Time to purchase the Capital
Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Capital Securities"), the Representatives shall have the
----------------------------
right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Capital Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representatives shall not have completed such arrangements
within such 24-hour period, then: (a) if the number of Defaulted Capital
Securities does not exceed 10% of the number of Capital Securities to be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Capital Securities exceeds 10% of the number
of Capital Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
23
<PAGE>
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Offerors
shall have the right to postpone the Closing Time, for a period not
exceeding seven days, in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Default by the Offerors. If at Closing Time the Offerors
-----------------------
shall fail to deliver the Capital Securities to the Representatives, then
the Underwriters may, at the option of the Representatives, by notice from
the Representatives to the Offerors, terminate this Agreement without any
liability on the part of any non-defaulting party except that the
provisions of Sections 1, 4, 6 and 7 shall remain in full force and effect.
No action taken pursuant to this Section 11 shall relieve the defaulting
party from liability, if any, in respect of such default.
SECTION 12. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, North Tower, World
Financial Center, New York, New York 10281-1201, attention of Henry R.
Michaels, Director, Financial Institutions Group; notices to the Offerors
shall be directed to the Company at 589 Fifth Avenue, New York, New York
10017, attention of the General Counsel.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
-------
be binding upon each of the Underwriters, the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of
the Underwriters, the Offerors and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Capital Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
24
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Offerors a counterpart hereof,
whereupon this agreement, along with all counterparts, will become a
binding agreement among the Underwriters and the Offerors in accordance
with its terms.
Very truly yours,
DIME CAPITAL TRUST I
BY DIME BANCORP, INC., as Depositor and Sponsor
By /s/ D. James Daras
-----------------------------------------------
Name: D. James Daras
Title: Executive Vice President and Treasurer
DIME BANCORP, INC.
By /s/ D. James Daras
-----------------------------------------------
Name: D. James Daras
Title: Executive Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BT SECURITIES CORPORATION
LEHMAN BROTHERS INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED.
By: /s/ Lee Whitley
---------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
25
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Name of Underwriter Capital Securities
- ------------------- ------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith 100,000
Incorporated BT Securities Corporation 50,000
Lehman Brothers Inc. 50,000
-------
Total 200,000
=======
</TABLE>
Sch A-1
<PAGE>
SCHEDULE B
List of Subsidiaries
DIME BANCORP, INC. SUBSIDIARIES
(as of April 29, 1997)
DIME CAPITAL TRUST I
DIME CAPITAL TRUST II
THE DIME SAVINGS BANK OF NEW YORK, FSB
FORMER ANCHOR AND LINCOLN SUBSIDIARIES
(as of April 29, 1997)
ACCORD AGENCY, INC.
ACCORD REALTY MANAGEMENT CORPORATION
ANCHOR MORTGAGE RESOURCES, INC. /1/
ANCHOR PROPERTIES OF NEW JERSEY, INC.
ANCHOR PROPERTY CORP.
ANCHOR RESIDENTIAL FACILITIES CORPORATION/2/
ANCHOR SYSTEMS CORP./3/
APRIL PARK CORP.
ASB AGENCY, INC.
69-30 AUSTIN HOLDING CORP.
THE CHELSEA ACCORD CORPORATION
THE DALTON ACCORD CORPORATION/4/
DIME NJ AGENCY, INC./5/
THE E-F BATTERY ACCORD CORPORATION
FAMESLINC, INC./6/
HARMONY AGENCY, INC./7/
- -------------------
/1/ Formerly known as Mortgage Resources, Inc.
/2/ Formerly known as Anchor Facilities Corp.
/3/ Formerly known as Suburban Coastal Systems Corporation, which was f/k/a
Coastal Computer Services, Inc.
/4/ Formerly known as The Sutton East Accord Corporation.
/5/ Formerly known as ASB/NJ Agency Inc., which was f/k/a Suburban Coastal
Insurance Services, Inc., which was f/k/a Coastal Insurance Services,
Inc.
/6/ Formerly known as 3489 Broadlinc, Inc.
/7/ Formerly known as Allrisk Agency, Inc.
Sch B-1
<PAGE>
HERITAGE COMMUNITY SERVICE CORP.
INSERVCO, INC.
520 LINC, INC.
LINCOLN BARRY GARDENS ACQUISITION CORP.
LINCOLN REALTY CAPITAL, INC./1/
LINCOLN RRE CORPORATION
LINCOLN TUDOR COURT ACQUISITION CORP.
LINCOLN VENTURES GROUP LTD.
THE MOUNT KISCO ACCORD CORPORATION
78 NEW LINC CORPORATION/2/
NEW PELHAMCO INC.
847218 ONTARIO LIMITED
847219 ONTARIO LIMITED
847220 ONTARIO LIMITED
847221 ONTARIO LIMITED
PELHAM VENTURE INC.
620-622 PELHAMDALE AVENUE OWNERS CORPORATION
RECON SERVICES CORP./3/
THE SEVENTH AVENUE ACCORD CORPORATION
THE SIXTH AVENUE ACCORD CORPORATION
SKY RESORT, INC.
STANDARD OF GEORGIA INSURANCE AGENCY, INC.
YELLOWSTONE VENTURE, INC.
- -------------
/1/ Formerly known as Accord Properties, Inc.
/2/ Formerly known as 78 New Linc Corp.
/3/ Formerly known as 1441 Grant Linc, Inc.
Sch B-2
<PAGE>
"DIME SAVINGS" SUBSIDIARIES
(as of April 29, 1997)
555 BILTMORE, INC./1/
445 CEDARHURST, INC.
COLONIAL BRISTOL INC.
THE DIME AGENCY, INC.
DIME FLORIDA CONSOLIDATION CORP./2/
DIME FUNDING, INC.
DIME MORTGAGE, INC./3/
DIME MORTGAGE OF ARIZONA, INC.
DIME MORTGAGE OF NEW JERSEY, INC./4/
THE DIME REAL ESTATE SERVICES -- CONNECTICUT, INC.
DIME SECURITIES OF NEW YORK, INC./5/
DNJ AGENCY, INC.
F.C. LTD.
FIFTH AVENUE PROPERTY CORP.
GARDEN MANAGEMENT CO., INC.
GRANNY ROAD LAND CORP.
1101 KENNEDY, INC.
LAKEVIEW LAND CORP./6/
LAWRENCE AVENUE CORP./7/
MEDFORD ASSOCIATES, INC.
MIDWAY HOLDINGS INC./8/
NICKEL PURCHASING COMPANY, INC.
NIFTY CORP.
NORTHEAST APPRAISALS, INC.
NORTHSHORE CONSOLIDATION CORP./9/
PEMBROKE AND LIVINGSTON, INC.
PLAINVIEW INN, INC.
- -----------
/1/ Formerly known as Alhambra Circle, Inc.
/2/ Formerly known as Dime Mortgage Company, Inc., which was formerly known as
The Dime Real Estate Services, Inc.
/3/ Formerly known as Dime Mortgage of Georgia, Inc.
/4/ Formerly known as Dime of New Jersey, Inc.
/5/ Formerly known as TDA Securities Inc.
/6/ Formerly known as 685 Parker Street Inc.
/7/ Formerly known as 220 Central Avenue Corp., which was formerly known as
Hicks Street, Inc.
/8/ Formerly known as Midway Green Inc.
/9/ Formerly known as Dime Consolidation Company, Inc.
Sch B-3
<PAGE>
1804 PLAZA CORP./1/
RESERVOIR AVENUE MANAGEMENT, INC.
299 SHORE LEE CORP.
SOMERSET CONSOLIDATION CORPORATION
UNIONDALE HOLDINGS INC.
VANDERVENTER CORP.
952 W. THIRD ST. CORP./2/
WACCABORO CORP.
WAPPINGERS FALLS DEVELOPMENT CORP.
WINDY RIDGE CORP.
- ----------
/1/ Formerly known as Prince Farms Development Corp., which was formerly known
as Pearl Plaza Inc., which was formerly known as Park Lane South Corp.
/2/ Formerly known as Macarthur Inc.
Sch B-4
<PAGE>
SCHEDULE C
DIME BANCORP, INC.
9.33% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
1. The initial public offering price per Capital Security, determined as
provided in said Section 2, shall be $1,000.
2. The purchase price per Capital Security to be paid by the several
Underwriters shall be $1,000, being an amount equal to the initial public
offering price set forth above. The Company shall pay to the Representatives,
for the account of the several Underwriters, an amount of $16.25 per Capital
Security, representing the underwriting commission set forth on page 1 of the
Prospectus.
Sch C-1
<PAGE>
Exhibit A
---------
OPINION OF THE COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
The opinions of counsel for the Company referred to in Section 5(b)
collectively shall be substantially to the following effect (capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Purchase Agreement):
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
The Company has the requisite corporate power and authority to conduct
its business in all material respects as described in the Prospectus.
(ii) The Bank is validly existing as a federal savings bank under the
Federal laws of the United States. The Bank has the requisite
corporate power and authority to conduct its business in all material
respects as described in the Prospectus.
(iii) All regulatory consents, authorizations, approvals
and filings required to be obtained or made by the Company or the
Trust under the Federal laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of
Delaware for the issuance, sale and delivery to the Underwriters of
the Capital Securities have been obtained or made.
(iv) Neither the execution and delivery of the Operative Documents by
the Trust or the Company, as the case may be, the issuance and
delivery of the Securities, the consummation by the Offerors of the
transactions contemplated in the Operative Documents and compliance by
the Offerors with their respective obligations under the Operative
Documents to which they are party nor the fulfillment of the terms
thereof does or will, whether with or without the giving of notice or
passage of time or both, (a) violate the Company's certificate of
incorporation or by-laws or the Trust Agreement or the Trust
Certificate, (b) result in a default under or breach of the Agreements
and Instruments known to such counsel, except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect, or (c) violate any Federal law of
the United States or law of the State of New York applicable to the
Company or the Trust; provided, however, that for purposes of this
-------- -------
paragraph (v), such counsel need not express an opinion with respect
to Federal or state securities laws, other antifraud laws or
fraudulent transfer laws.
(v) The Purchase Agreement has been duly authorized, executed and
delivered by the Company and has been duly executed and delivered by
the Trust.
(vi) The Trust Agreement has been duly authorized, executed and
delivered by the Company and has been duly executed and delivered by
the Administrative
A-1
<PAGE>
Trustees for the Trust, and, assuming it is duly authorized, executed
and delivered by the Property Trustee and Delaware Trustee, the Trust
Agreement constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject
to the Enforceability Exceptions.
(vii) The Guarantee has been duly authorized, executed and delivered
by the Company and, assuming it is duly authorized, executed and
delivered by the Guarantee Trustee, constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the Enforceability Exceptions.
(viii) The Indenture has been duly authorized, executed and delivered
by the Company and, assuming it is duly authorized, executed and
delivered by the Debenture Trustee, constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms,
subject to the Enforceability Exceptions.
(ix) The Trust Agreement, the Guarantee and the Indenture have been
duly qualified under the 1939 Act.
(x) The Junior Subordinated Debentures have been duly and validly
authorized, executed, authenticated and delivered and will constitute
valid and binding obligations of the Company enforceable in accordance
with their terms, subject to the Enforceability Exceptions.
(xi) Neither the Company nor the Trust is, or following consummation
of the transactions contemplated by the Purchase Agreement and the
application of the net proceeds as described in the Prospectus will
be, an "investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(xii) The statements set forth in the Prospectus relating to the
Capital Securities under the captions "Description of Preferred
Securities," "Description of Junior Subordinated Debentures,"
"Description of Guarantees," "Relationship Among the Preferred
Securities, The Corresponding Junior Subordinated Debentures, the
Expense Agreement and the Guarantees" and "Plan of Distribution," as
supplemented by the Prospectus Supplement under the captions "Certain
Terms of Series A Capital Securities," "Certain Terms of Series A
Subordinated Debentures," "Certain Terms of Series A Guarantee" and
"Underwriting," insofar as they purport to constitute summaries of
certain terms of the Operative Agreements, in each case constitute
accurate summaries of the terms of the Operative Agreements in all
material respects.
In addition, in one or more separate letters, such counsel shall state that
they have reviewed the Registration Statement and the Prospectus, participated
in discussions with the Representative and the representatives of the Company
and its accountants and that, on the basis of the information gained in such
discussions, the Registration Statement, as of the date it
A-2
<PAGE>
became effective, the Prospectus, as of the date of the Prospectus, appeared on
their face to be appropriately responsive in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations, and that such counsel
does not know of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement which are not filed as
required. Further, such counsel shall confirm that nothing that came to their
attention in the course of the aforementioned review has caused them to believe
that the Registration Statement, as of the date it became effective, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of the Prospectus and as of
the Closing Date, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process are
such, however, that such counsel shall not be required to assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under the headings "Description of Junior Subordinated Debentures," "Description
of Preferred Securities," "Description of Guarantees," "Relationship Among the
Preferred Securities, the Corresponding Junior Subordinated Debentures, the
Expense Agreements and the Guarantees," "Certain Terms of Series A Capital
Securities," "Certain Terms of Series A Subordinated Debentures," "Certain Terms
of Series A Guarantee" and "Underwriting" in the Prospectus insofar as they
relate to provisions of documents therein described. Also, such counsel need
not express any opinion or belief as to the financial statements or other
financial data contained in the Registration Statement of the Prospectus or as
to the statement of eligibility and qualification of the trustee under the
Indenture.
The General Counsel of the Company also shall confirm that he does not know
of (a) any litigation or any governmental proceeding instituted or threatened
against the Company or any of its consolidated subsidiaries that would be
required to be disclosed in the Prospectus and is not so disclosed and (b) of
any contracts or other documents of a character required to be incorporated by
reference into the Prospectus as amended or supplemented or required to be
summarized in the Registration Statement or Prospectus as amended or
supplemented which are not incorporated by reference or summarized as required.
A-3
<PAGE>
Exhibit B
---------
OPINION OF SPECIAL DELAWARE COUNSEL TO THE OFFERORS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
The opinion of special Delaware counsel for the Company and the Trust
referred to in Section 5 shall be to the following effect (capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Purchase Agreement):
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act,
and all filings required under the laws of the State of
Delaware with respect to the creation and valid existence of
the Trust as a business trust have been made.
(ii) Under the Delaware Act and the Trust Agreement, the
Trust has the business trust power and authority to (A)
execute and deliver, and to perform its obligations under,
the Purchase Agreement, (B) issue and perform its obligations
under the Capital Securities and the Common Securities, (C)
purchase and hold the Junior Subordinated Debentures, and (D)
own property and conduct its business, all as described in
the Prospectus.
(iii) The Common Securities have been duly authorized by the
Trust Agreement and are validly issued and represent
undivided beneficial interests in the assets of the Trust.
(iv) The Capital Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject
to certain qualifications, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
The holders of the Capital Securities, as beneficial owners
of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware.
(v) Under the Trust Agreement and the Delaware Act, the
issuance of the Capital Securities and the Common Securities
are not subject to preemptive or other similar rights.
(vi) The execution, delivery and performance of the Purchase
Agreement by the Trust or the Company, as the case may be,
the issuance and sale by the Trust of the Securities, the
consummation by the Offerors of the transactions contemplated
thereby, and compliance by the Offerors with their respective
obligations thereunder do not and will not, whether with or
without the giving of notice or passage of time or both,
violate (A) any provisions of the charter or by-laws of the
Company or any subsidiary thereof or the Trust Agreement or
the Trust Certificate or (B) any existing applicable law,
rule, regulation, judgment, order, writ or decree of any
government, governmental instrumentality or court,
B-1
<PAGE>
domestic or foreign, having jurisdiction over the Trust, the Company
or any subsidiary thereof. After due inquiry on the business day
immediately prior to the Closing Date, limited to, and solely to the
extent disclosed thereupon, court dockets for active cases in the
Court of Chancery of the State of Delaware in and for New Castle
County, Delaware, of the Superior Court of the State of Delaware in
and for New Castle County, Delaware, and of the United States District
Court sitting in the State of Delaware, such counsel is not aware of
any legal or governmental proceeding pending against the Trust.
(vii) Under the Trust Agreement and the Delaware Act, the execution
and delivery by the Trust of the Purchase Agreement, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
(viii) The Trust Agreement constitutes a valid and binding obligation
of the Company and the Trustees, and is enforceable against the
Company and the Trustees, in accordance with its terms, and the
Capital Securities entitle the holders thereof to the benefits of the
Trust Agreement, subject to the terms of the Trust Agreement and to
the Enforceability Exceptions.
B-2
<PAGE>
Exhibit C
---------
OPINION OF COUNSEL FOR THE TRUSTEES
TO BE DELIVERED PURSUANT TO SECTION 5(d)
The opinions of counsel for the Guarantee Trustee, the Property
Trustee, the Debenture Trustee and the Delaware Trustee (for purposes of this
form of opinion, each, a "Trustee") referred to in Section 5(d) shall each be to
the following effect (capitalized terms used but not defined herein shall have
the meanings ascribed to them in the Purchase Agreement):
(i) The Trustee is a _____ banking corporation with trust powers,
duly organized and validly existing in good standing under the laws of the
State of _____, with full corporate trust power and authority to execute,
deliver and carry out and perform its obligations under the terms of the
Guarantee, the Trust Agreement and the Indenture.
(ii) The execution, delivery and performance by the Trustee of
the [Guarantee, the DTC Agreement, the Trust Agreement and the
Indenture]/1/ have been duly authorized by all necessary corporate action
on the part of the Trustee and [each of the Guarantee, the Trust Agreement
and the Indenture] has been duly executed and delivered by the Trustee, and
constitutes the legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, except to the
extent that enforcement thereof may be limited by the Enforceability
Exceptions.
(iii) The execution and delivery of the [Guarantee, the DTC
Agreement, the Trust Agreement and the Indenture] by the Trustee and the
performance by the Trustee of its obligations thereunder do not conflict
with or constitute a breach of the charter or by-laws of the Trustee.
(iv) No consent, approval or authorization of, or registration or
filing with or notice to, any court or governmental authority or agency of
the State of _____ or the United States of America having jurisdiction over
the banking or trust powers of the Trustee is required for the execution,
delivery or performance by the Trustee of the [Guarantee, the DTC
Agreement, the Trust Agreement or the Indenture] or the consummation on the
part of the Trustee of any of the transactions contemplated therein.
- -----------------
/1/ Insert documents to which the applicable Trustee is a party for each
bracketed section.
C-1
<PAGE>
Exhibit 4.1
================================================================================
DIME BANCORP, INC.
to
THE CHASE MANHATTAN BANK,
as Trustee
----------------------
JUNIOR SUBORDINATED INDENTURE
Dated as of May 6, 1997
----------------------
================================================================================
<PAGE>
DIME BANCORP, INC.
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and the Junior Subordinated Indenture, dated as of
May 6, 1997.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
(SECTION) 310 (a) (1), (2) and (5).......................... 6.9
(a) (3)....................................... Not Applicable
(a) (4)....................................... Not Applicable
(b)........................................... 6.8
.............................................. 6.10
(c)........................................... Not Applicable
(SECTION) 311 (a)........................................... 6.13
(b)........................................... 6.13
(b) (2)....................................... 7.3(a)(2)
(SECTION) 312 (a)........................................... 7.1
.............................................. 7.2(a)
(b)........................................... 7.2(b)
(c)........................................... 7.2(c)
(SECTION) 313 (a)........................................... 7.3(a)
(b)........................................... 7.3(b)
(c)........................................... 7.3(a), 7.3(b)
(d)........................................... 7.3(c)
(SECTION) 314 (a) (1), (2) and (3).......................... 7.4
(a) (4)....................................... 10.4
(b)........................................... Not Applicable
(c) (1)....................................... 1.2
(c) (2)....................................... 1.2
(c) (3)....................................... Not Applicable
(d)........................................... Not Applicable
(e)........................................... 1.2
(f)........................................... Not Applicable
(SECTION) 315 (a)........................................... 6.1(a)
(b)........................................... 6.2
.............................................. 7.3(a)
(c)........................................... 6.1(b)
(d)........................................... 6.1(c)
(d) (1)....................................... 6.1(a) (1)
(d) (2)....................................... 6.1(c) (2)
(d) (3)....................................... 6.1(c) (3)
(e)........................................... 5.14
(SECTION) 316 (a)........................................... 1.1
(a) (1) (A)................................... 5.12
(a) (1) (B)................................... 5.13
(a) (2)....................................... Not Applicable
(b)........................................... 5.8
(c)........................................... 1.4(f)
(SECTION) 317 (a) (1)....................................... 5.3
(a) (2)....................................... 5.4
(b)........................................... 10.3
(SECTION) 318 (a)........................................... 1.7
- -----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Junior Subordinated Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.............................................. 1
SECTION 1.2. Compliance Certificate and Opinions...................... 11
SECTION 1.3. Forms of Documents Delivered to Trustee.................. 11
SECTION 1.4. Acts of Holders.......................................... 12
SECTION 1.5. Notices, Etc. to Trustee and Corporation................. 14
SECTION 1.6. Notice to Holders; Waiver................................ 15
SECTION 1.7. Conflict with Trust Indenture Act........................ 15
SECTION 1.8. Effect of Headings and Table of Contents................. 15
SECTION 1.9. Successors and Assigns................................... 15
SECTION 1.10. Separability Clause...................................... 16
SECTION 1.11. Benefits of Indenture.................................... 16
SECTION 1.12. Governing Law............................................ 16
SECTION 1.13. Non-Business Days........................................ 16
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.......................................... 16
SECTION 2.2. Form of Face of Security................................. 17
SECTION 2.3. Form of Reverse of Security.............................. 21
SECTION 2.4. Additional Provisions Required in Global Security........ 25
SECTION 2.5. Form of Trustee's Certificate of Authentication.......... 26
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.......................................... 26
SECTION 3.2. Denominations............................................ 30
SECTION 3.3. Execution, Authentication, Delivery and Dating........... 30
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<PAGE>
SECTION 3.4. Temporary Securities...................................... 31
SECTION 3.5. Global Securities......................................... 32
SECTION 3.6. Registration, Transfer and Exchange Generally............. 33
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.......... 34
SECTION 3.8. Payment of Interest and Additional Interest; Interest
Rights Preserved.......................................... 35
SECTION 3.9. Persons Deemed Owners..................................... 37
SECTION 3.10. Cancellation.............................................. 37
SECTION 3.11. Computation of Interest................................... 38
SECTION 3.12. Deferrals of Interest Payment Dates....................... 38
SECTION 3.13. Right of Set-Off.......................................... 39
SECTION 3.14. Agreed Tax Treatment...................................... 40
SECTION 3.15. Shortening or Extension of Stated Maturity................ 40
SECTION 3.16. CUSIP Numbers............................................. 40
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture................... 41
SECTION 4.2. Application of Trust Money................................ 42
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default......................................... 42
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment........ 43
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................ 45
SECTION 5.4. Trustee May File Proofs of Claim.......................... 46
SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities 47
SECTION 5.6. Application of Money Collected............................ 47
SECTION 5.7. Limitation on Suits....................................... 47
SECTION 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of
Preferred Securities...................................... 48
SECTION 5.9. Restoration of Rights and Remedies........................ 49
SECTION 5.10. Rights and Remedies Cumulative............................ 49
SECTION 5.11. Delay or Omission Not Waiver.............................. 49
SECTION 5.12. Control by Holders........................................ 49
-ii-
<PAGE>
Page
SECTION 5.13. Waiver of Past Defaults................................... 50
SECTION 5.14. Undertaking for Costs..................................... 50
SECTION 5.15. Waiver of Usury, Stay or Extension Laws................... 51
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities....................... 51
SECTION 6.2. Notice of Defaults........................................ 52
SECTION 6.3. Certain Rights of Trustee................................. 53
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.... 54
SECTION 6.5. May Hold Securities....................................... 54
SECTION 6.6. Money Held in Trust....................................... 54
SECTION 6.7. Compensation and Reimbursement............................ 55
SECTION 6.8. Disqualification; Conflicting Interests................... 55
SECTION 6.9. Corporate Trustee Required; Eligibility................... 56
SECTION 6.10. Resignation and Removal; Appointment of Successor......... 56
SECTION 6.11. Acceptance of Appointment by Successor.................... 58
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.................................................. 59
SECTION 6.13. Preferential Collection of Claims Against Corporation..... 59
SECTION 6.14. Appointment of Authenticating Agent....................... 59
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION
SECTION 7.1. Corporation to Furnish Trustee Names and Addresses of
Holders................................................... 61
SECTION 7.2. Preservation of Information, Communications to Holders.... 62
SECTION 7.3. Reports by Trustee........................................ 62
SECTION 7.4. Reports by Corporation.................................... 62
-iii-
<PAGE>
Page
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Corporation May Consolidate, Etc., Only on Certain Terms..... 63
SECTION 8.2. Successor Corporation Substituted............................ 64
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders........... 64
SECTION 9.2. Supplemental Indentures with Consent of Holders.............. 66
SECTION 9.3. Execution of Supplemental Indentures......................... 67
SECTION 9.4. Effect of Supplemental Indentures............................ 67
SECTION 9.5. Conformity with Trust Indenture Act.......................... 68
SECTION 9.6. Reference in Securities to Supplemental Indentures........... 68
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest................... 68
SECTION 10.2. Maintenance of Office or Agency.............................. 68
SECTION 10.3. Money for Security Payments to be Held in Trust.............. 69
SECTION 10.4. Statement as to Compliance................................... 70
SECTION 10.5. Waiver of Certain Covenants.................................. 71
SECTION 10.6. Additional Sums.............................................. 71
SECTION 10.7. Additional Covenants......................................... 72
SECTION 10.8. Original Issue Discount. .................................... 73
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of This Article................................ 73
SECTION 11.2. Election to Redeem; Notice to Trustee........................ 73
-iv-
<PAGE>
Page
SECTION 11.3. Selection of Securities to be Redeemed....................... 74
SECTION 11.4. Notice of Redemption......................................... 74
SECTION 11.5. Deposit of Redemption Price.................................. 75
SECTION 11.6. Payment of Securities Called for Redemption.................. 75
SECTION 11.7. Right of Redemption of Securities Initially Issued to
an Issuer Trust.............................................. 76
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article..................................... 77
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities........ 77
SECTION 12.3. Redemption of Securities for Sinking Fund.................... 77
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Indebtedness................ 79
SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment Over
of Proceeds Upon Dissolution, Etc............................ 79
SECTION 13.3. Payment Permitted If No Default.............................. 81
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness...... 81
SECTION 13.5. Provisions Solely to Define Relative Rights.................. 82
SECTION 13.6. Trustee to Effectuate Subordination.......................... 82
SECTION 13.7. No Waiver of Subordination Provisions........................ 83
SECTION 13.8. Notice to Trustee............................................ 83
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent........................................................ 84
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness..... 84
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights............................. 84
SECTION 13.12. Article Applicable to Paying Agents.......................... 85
-v-
<PAGE>
JUNIOR SUBORDINATED INDENTURE, dated as of May 6, 1997, between DIME
BANCORP, INC., a Delaware corporation (the "Corporation"), having its principal
office at 589 Fifth Avenue, New York, New York 10017, and THE CHASE MANHATTAN
BANK, a New York banking corporation, as Trustee (the "Trustee").
RECITALS OF THE CORPORATION
WHEREAS, the Corporation has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in series (hereinafter called the
"Securities") of substantially the tenor hereinafter provided, including
Securities issued to evidence loans made to the Corporation of the proceeds from
the issuance from time to time by one or more business trusts (each an "Issuer
Trust") of undivided preferred beneficial interests in the assets of such Issuer
Trusts (the "Preferred Securities") and undivided common beneficial interests in
the assets of such Issuer Trusts (the "Common Securities" and, collectively with
the Preferred Securities, the "Trust Securities"), and to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Corporation, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
<PAGE>
(2) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(4) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles;
(5) Whenever the context may require, any gender shall be deemed
to include the others;
(6) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(7) The words "hereby," "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not
to any particular Article,
Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Securities of any series the payment of which has not been
made on the applicable Interest Payment Date and which shall accrue at the rate
per annum specified or determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means any additional taxes, duties and other
governmental charges to which an Issuer Trust has become subject from time to
time as a result of a Tax Event.
"Administrative Trustees" means, in respect of any Issuer Trust, each
Person identified as an "Administrative Trustee" in the related Trust Agreement,
solely in such Person's capacity as Administrative Trustee of such Issuer Trust
under such Trust Agreement and not in such Person's individual capacity, or any
successor administrative trustee appointed as therein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or
-2-
<PAGE>
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Bankruptcy Code" means Title 11 of the United States Code or any
successor statute thereto, in each case as amended from time to time.
"Board of Directors" means the board of directors of the Corporation or
the Strategic Planning Committee of the board of directors of the Corporation
(or any other committee of the board of directors of the Corporation performing
similar functions) or a committee designated by the board of directors of the
Corporation (or such committee), comprised of two or more members of the board
of directors of the Corporation or officers of the Corporation, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly adopted
by the Board of Directors, or officers of the Corporation to which authority to
act on behalf of the Board of Directors has been delegated, and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to an Issuer Trust for so long as such Securities are
held by such Issuer Trust, the "Corporate Trust Office" (as defined in the
related Trust Agreement) of the Property Trustee under the related Trust
Agreement, is closed for business.
"Capital Treatment Event" means in respect of any Issuer Trust, any time
when the Corporation for any reason is subject to Holding Company Capital Rules
and the Corporation is not entitled to treat an amount equal to the aggregate
Liquidation Amount (as such term is defined in the related Trust Agreement) of
the Preferred Securities of such Issuer Trust as
-3-
<PAGE>
Tier 1 Capital (or the then equivalent thereof) for purposes of Holding Company
Capital Rules, as then in effect and applicable to the Corporation.
"Common Securities" has the meaning specified in the first recital of
this Indenture.
"Common Stock" means the common stock, par value $0.01 per share, of the
Corporation.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered.
"corporation" includes a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor corporation.
"Corporation Request" and "Corporation Order" mean, respectively, the
written request or order signed in the name of the Corporation by its Chief
Executive Officer, its President or an Executive Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Debt" means, with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent and without
duplication, (i) every obligation of such Person for money borrowed; (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person; (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such Person;
(vi) all indebtedness of such Person, whether incurred on or prior to the date
of this Indenture or thereafter incurred, for claims in respect of derivative
products, including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; and (vii) every
obligation of the type referred to in clauses (i) through (vi) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable for, directly or indirectly,
as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.8.
-4-
<PAGE>
"Delaware Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Delaware Trustee" in the related Trust Agreement, solely in
its capacity as Delaware Trustee of such Issuer Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware Trustee appointed as therein
provided.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Corporation pursuant to
Section 3.1 with respect to such series (or any successor thereto).
"Discount Security" means any security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions" means, with respect to the Trust Securities issued by an
Issuer Trust, amounts payable in respect of such Trust Securities as provided in
the related Trust Agreement and referred to therein as "Distributions."
"Dollar" or "$" means the currency of the United States of America that,
as at the time of payment, is legal tender for the payment of public and private
debts.
"Event of Default", unless otherwise specified with respect to a series
of Securities as contemplated by Section 3.1, has the meaning specified in
Article V.
"Exchange Act" means the Securities Exchange Act of 1934 or any
successor statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4(f).
"Extension Period" has the meaning specified in Section 3.12.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee Agreement" means, with respect to any Issuer Trust, the
Guarantee Agreement executed by the Corporation for the benefit of the Holders
of the Preferred Securities issued by such Issuer Trust as modified, amended or
supplemented from time to time.
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"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Holding Company Capital Rules" means holding company-level capital
adequacy guidelines of the Board of Governors of the Federal Reserve System (12
C.F.R. Part 225, app. A) or similar guidelines, to which the Corporation could
become subject as a result of the adoption of legislation, action of federal
bank regulatory agencies or the merger or consolidation of the Corporation with
a bank holding company.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of each particular series of Securities established
as contemplated by Section 3.1.
"Interest Payment Date" means, as to each series of Securities, the
Stated Maturity of an installment of interest on such Securities.
"Investment Company Act" means the Investment Company Act of 1940 or any
successor statute thereto, in each case as amended from time to time.
"Issuer Trust" has the meaning specified in the first recital of this
Indenture.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security or any installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3).
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President or an Executive Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Corporation and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Corporation or any Affiliate of the
Corporation.
"Original Issue Date" means the date of issuance specified as such in
each Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent in
trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or that have been paid
pursuant to Section 3.7, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands
such Securities are valid, binding and legal obligations of the
Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Corporation or any other obligor upon the Securities or any Affiliate of
the Corporation or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities that a Responsible Officer of the Trustee
knows to be so owned shall be so disregarded. Securities so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Corporation or any other obligor
upon the Securities or any Affiliate of the Corporation or such other obligor.
Upon the written request of the Trustee, the Corporation shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Corporation to be owned or held by or for the
account of the Corporation, or any other obligor on the Securities or any
Affiliate of the Corporation or such obligor, and subject to the provisions of
Section 6.1, the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination. Notwithstanding anything herein to the contrary, Securities of
any series initially issued to an Issuer Trust that are owned by such Issuer
Trust shall be deemed to be Outstanding notwithstanding the ownership by the
Corporation or an Affiliate of any beneficial interest in such Issuer Trust.
"Paying Agent" means the Trustee or any Person authorized by the
Corporation to pay the principal of (or premium, if any) or interest on, or
other amounts in respect of, any Securities on behalf of the Corporation.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
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"Place of Payment" means, with respect to the Securities of any series,
the place or places where the principal of (and premium, if any) and interest on
the Securities of such series are payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any security
authenticated and delivered under Section 3.7 in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Property Trustee" in the related Trust Agreement, solely in
its capacity as Property Trustee of such Issuer Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Property Trustee appointed as therein provided.
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture or
the terms of such Security.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of such series, the date that
is fifteen days next preceding such Interest Payment Date (whether or not a
Business Day).
"Responsible Officer" means, when used with respect to the Trustee, any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Rights Plan" means a plan of the Corporation providing for the issuance
by the Corporation to all holders of its Common Stock of rights entitling the
holders thereof to subscribe for or purchase shares of any class or series of
capital stock of the Corporation which rights (i) are deemed to be transferred
with such shares of such Common Stock, and (ii) are also issued in respect of
future issuances of such Common Stock, in each case until the occurrence of a
specified event or events.
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"Securities" or "Security" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 or any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.6.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Corporation whether
or not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Corporation, whether incurred on or prior to the date of this
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Securities or
to other Debt that is pari passu with, or subordinated to, the Securities,
provided, however, that Senior Indebtedness shall not be deemed to include (a)
any Debt of the Corporation that, when incurred and without respect to any
election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was without
recourse to the Corporation, (b) any Debt of the Corporation to any of its
Subsidiaries, (c) Debt to any employee of the Corporation, (d) any Securities,
(e) trade accounts payable of the Corporation, and (f) accrued liabilities
arising in the ordinary course of business of the Corporation.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof (or premium, if any) or interest (including any
Additional Interest) thereon, the date specified pursuant to the terms of such
Security as the fixed date on which the principal of such Security or such
installment of principal (or premium, if any) or interest (including any
Additional Interest) is due and payable, as such date may, in the case of the
stated maturity of the principal on any Security, be shortened or extended as
provided pursuant to the terms of such Security and this Indenture and, in the
case of any installment of interest, subject to the deferral of any such date in
the case of any Extension Period.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Corporation or by one or
more other Subsidiaries, or by the Corporation and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock that
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
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"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for purposes of this definition, any Security
authenticated and delivered under Section 3.7 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Tax Event" means the receipt by an Issuer Trust (or the Corporation, if
the Securities are no longer held by such Issuer Trust) of an Opinion of Counsel
(as defined in the relevant Trust Agreement) experienced in such matters to the
effect that, as a result of any amendment to, or change (including any announced
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities of such Issuer Trust (or the Securities
if they are no longer held by such Issuer Trust), there is more than an
insubstantial risk that (i) such Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States Federal income
tax with respect to income received or accrued on the corresponding series of
Securities issued by the Corporation to such Issuer Trust, (ii) interest payable
by the Corporation on such corresponding series of Securities is not, or within
90 days of the delivery of such Opinion of Counsel will not be, deductible by
the Corporation, in whole or in part, for United States Federal income tax
purposes, or (iii) such Issuer Trust is, or will be within 90 days of the
delivery of such Opinion of Counsel, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Trust Agreement" means, with respect to any Issuer Trust, the trust
agreement or other governing instrument of such Issuer Trust.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture, solely in its capacity as such and not in its individual
capacity, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss. 77aaa- 77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of
this Indenture.
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"Vice President" means, when used with respect to the Corporation, any
duly appointed Executive Vice President.
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Corporation to the Trustee to
take any action under any provision of this Indenture, the Corporation shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent (including covenants compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent (including covenants
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.4) shall include:
(1) a statement by each individual signing such certificate or opinion
that such individual has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions of such individual contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Corporation may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his or her certificate or opinion is based
are erroneous. Any such certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given to or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments is or are
delivered to the Trustee and, where it is hereby expressly required, to the
Corporation. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee and the Corporation, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a Person acting in other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may
determine.
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(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Corporation in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Corporation may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next succeeding paragraph.
If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
(as defined below) by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Corporation from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Corporation, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2), or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to
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prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Corporation's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to be given to
the Corporation in writing and to each Holder of Securities of the relevant
series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section 1.04(f),
the party that sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Corporation.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Preferred Securities or the
Corporation shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, or
(2) the Corporation by the Trustee, any Holder or any holder of
Preferred Securities shall be sufficient for every purpose (except as otherwise
provided in Section 5.1) hereunder if in writing and mailed, first class,
postage prepaid, to the Corporation addressed to it at the address of its
principal executive office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee by the
Corporation.
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SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail service or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or of
the relevant Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof, such imposed duties
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
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SECTION 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Indebtedness, the Holders and, to the extent
expressly provided in Sections 5.1, 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the
holders of Preferred Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or the Securities) payment of interest or principal (and
premium, if any) or other amounts in respect of such Security need not be made
on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such next succeeding Business Day) except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental
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hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws or the rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Corporation and delivered to the Trustee at or prior
to the delivery of the Corporation Order contemplated by Section 3.3 with
respect to the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
SECTION 2.2. Form of Face of Security.
DIME BANCORP, INC.
[TITLE OF SECURITY]
No. $
DIME BANCORP, INC., a corporation organized and existing under the laws
of Delaware (hereinafter called the "Corporation", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________, or registered assigns, the
principal sum of __________ Dollars on __________ __, [if the Security is a
Global Security, then insert, if applicable--, or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture,] [; provided
that the Corporation may shorten the Stated Maturity of the principal of this
Security to a date not earlier than __________, in the circumstances described
on the reverse hereof]. The Corporation further promises to pay interest on said
principal sum from , or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, [monthly] [quarterly]
[semi-annually] [if applicable, insert--(subject to deferral as set forth
herein)] in arrears on [insert applicable Interest Payment Dates] of each year,
commencing , , at the rate of % per annum, [if applicable insert--together
with Additional Sums, if any, as provided in Section 10.6 of the Indenture]
until the principal hereof is paid or duly provided for or made available for
payment [if applicable, insert-- ; provided that any overdue principal, premium
or Additional Sums and any overdue installment of interest shall bear
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Additional Interest at the rate of __% per annum (to the extent that the payment
of such interest shall be legally enforceable), compounded [monthly] [quarterly]
[semi-annually], from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The amount
of interest payable for any period less than a full interest period shall be
computed on the basis of a 360-day year of twelve 30-day months and the actual
days elapsed in a partial month in such period. The amount of interest payable
for any full interest period shall be computed by dividing the applicable rate
per annum by [twelve/four/two]. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest installment [if applicable insert--, which shall
be the [____________ or ____________] (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date]. Any such interest not
so punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has occurred and
is continuing, the Corporation shall have the right, at any time during the term
of this Security, from time to time to defer the payment of interest on this
Security for up to ___ consecutive [monthly] [quarterly] [semi-annual] interest
payment periods with respect to each deferral period (each an "Extension
Period") [If applicable, insert--, during which Extension Periods the
Corporation shall have the right to make partial payments of interest on any
Interest Payment Date, and] at the end of which the Corporation shall pay all
interest then accrued and unpaid including any Additional Interest, as provided
below; provided, however, that no Extension Period shall extend beyond the
Stated Maturity of the principal of this Security [If Stated Maturity can be
shortened or extended, insert--, as then in effect,] and no such Extension
Period may end on a date other than an Interest Payment Date; and provided,
further, however, that during any such Extension Period, the Corporation shall
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the 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 this Security
(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 any 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
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<PAGE>
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 an 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 Rights Plan, or the issuance of rights, stock or other property under
any 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). Prior to the termination of any
such Extension Period, the Corporation may further defer the payment of
interest, provided that no Extension Period shall exceed ___ consecutive
[monthly] [quarterly] [semi-annual] interest payment periods, extend beyond the
Stated Maturity of the principal of this Security or end on a date other than an
Interest Payment Date. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due on any Interest Payment Date, the Corporation may elect to begin a new
Extension Period, subject to the above conditions. No interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension shall bear Additional Interest (to the extent that the payment of
such interest shall be legally enforceable) at the rate of ____% per annum,
compounded [monthly] [quarterly] [semi-annually] and calculated as set forth in
the first paragraph of this Security, from the dates on which amounts would
otherwise have been due and payable until paid or made available for payment.
The Corporation shall give the Holder of this Security and the Trustee notice of
its election to begin any Extension Period at least one Business Day prior to
the next succeeding Interest Payment Date on which interest on this Security
would be payable but for such deferral [if applicable, insert--or so long as
such Securities are held by [insert name of applicable Issuer Trust], at least
one Business Day prior to the earlier of (i) the next succeeding date on which
Distributions on the Preferred Securities of such Issuer Trust would be payable
but for such deferral, and (ii) the date on which the Property Trustee of such
Issuer Trust is required to give notice to any securities exchange or other
applicable self-regulatory organization or to holders of such Preferred
Securities of the record date or the date such Distributions are payable].
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Corporation maintained for
that purpose in the [insert Place of Payment], in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts [if applicable, insert--; provided, however, that at
the option of the Corporation payment of interest may be made
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<PAGE>
(i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Securities Register, or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register].
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such actions as may be necessary or appropriate to effectuate the subordination
so provided, and (c) appoints the Trustee his or her attorney-in-fact for any
and all such purposes. Each Holder hereof, by his or her acceptance hereof,
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
DIME BANCORP, INC.
Dated:
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
Attest:
- ----------------------------------
[Secretary or Assistant Secretary]
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<PAGE>
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under the Junior Subordinated Indenture, dated as of May 6, 1997
(herein called the "Indenture"), between the Corporation and The Chase Manhattan
Bank, as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Corporation, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if
applicable, insert--, limited in aggregate principal amount to $
].
All terms used in this Security that are defined in the Indenture [if
applicable, insert--or in the Amended and Restated Trust Agreement, dated as of
___________, ____ (as modified, amended or supplemented from time to time, the
"Trust Agreement"), relating to [insert name of Issuer Trust] (the "Issuer
Trust") among the Corporation, as Depositor, the Trustees named therein and the
Holders from time to time of the Trust Securities issued pursuant thereto, shall
have the meanings assigned to them in the Indenture [if applicable, insert--or
the Trust Agreement, as the case may be].
[If applicable, insert--The Corporation may at any time, at its option,
on or after _________, ____, and subject to the terms and conditions of Article
XI of the Indenture, redeem this Security in whole at any time or in part from
time to time, at the following Redemption Prices (expressed as percentages of
the principal amount hereof): If redeemed during the 12-month period beginning
_____________,
Redemption
Year Price
---- ----------
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, together, in the case of any such redemption, with accrued interest [if
applicable, insert--, including any Additional Interest,] to but excluding the
date fixed for redemption.]
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<PAGE>
[If the Security is subject to redemption of any kind, insert--In the
event of redemption of this Security in part only, a new Security or Securities
of this series for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.]
[If applicable, insert--If at any time a Tax Event [or a Capital
Treatment Event] occurs and (i) in the opinion of counsel to the Corporation
experienced in such matters, there would in all cases, after effecting the
termination of any Issuer Trust which holds this Security and the distribution
of this Security to the holders of the Trust Securities of such Issuer Trust in
exchange therefor, be more than an insubstantial risk that an Adverse Tax
Consequence (as defined below) would continue to exist, [(ii) in the reasonable
determination of the Corporation, there would in all cases, after effecting the
termination of any Issuer Trust which holds this Security and the distribution
of this Security to the holders of the Trust Securities of such Issuer Trust in
exchange therefor, be more than an insubstantial risk that the Corporation would
not be entitled to treat an amount equal to the Liquidation Amount of such
Preferred Securities of such Issuer Trust as "Tier 1 Capital" (or the then
equivalent thereof) for purposes of the Holding Company Capital Rules, as then
in effect and applicable to the Corporation, ]or (ii[i]) this Security is not
held by an Issuer Trust, then the Corporation shall have the right (a) to
shorten the Stated Maturity of this Security to the minimum extent required, but
in any event to a date not earlier than ___________ (the action referred to in
this clause (a) being referred to herein as a "Maturity Advancement"), such
that, in the opinion of counsel to the Corporation experienced in such matters,
after advancing the Stated Maturity, interest paid hereon will be deductible for
United States federal income tax purposes, or (b) if [either (x)] in the opinion
of counsel to the Corporation experienced in such matters, there would in all
cases, after effecting a Maturity Advancement, be more than an insubstantial
risk that an Adverse Tax Consequence would continue to exist[ or (y) in the
reasonable determination of the Corporation, there would in all cases, after
effecting a Maturity Advancement, be more than an insubstantial risk that the
Corporation would not be entitled to treat an amount equal to the Liquidation
Amount of the Preferred Securities of an Issuer Trust holding this Security, if
any, as "Tier 1 Capital" (or the then equivalent thereof) for purposes of the
Holding Company Capital Rules, as then in effect and applicable to the
Corporation], to redeem this Security, in whole but not in part, at any time
within 90 days following the occurrence of the Tax Event[ or Capital Treatment
Event], at a Redemption Price equal to [insert formula]. "Adverse Tax
Consequence" means any of the following circumstances: (i) an Issuer Trust which
holds this Security is, or will be, within 90 days of the Opinion of Counsel
giving rise to a Tax Event, subject to United States federal income tax with
respect to income received or accrued on this Security, (ii) interest payable by
the Corporation on this Security is not, or within 90 days of the date of such
Opinion of Counsel will not be, deductible by the Corporation, in whole or in
part, for United States federal income tax purposes or (iii) an Issuer Trust
which holds this Security is, or will be within 90 days of the date of such
Opinion of Counsel, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.]
[Insert formula definitions]
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<PAGE>
[Insert any other redemption provisions, as applicable]
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Corporation with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Corporation and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Corporation and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Corporation with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
[If the Security is not a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Corporation (and
to the Trustee if given by Holders) [if applicable, insert--, provided that, if
upon an Event of Default, the Trustee or such Holders fail to declare the
principal of all the Outstanding Securities of this series to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount of the
Preferred Securities then Outstanding shall have the right to make such
declaration by a notice in writing to the Corporation and the Trustee]; and upon
any such declaration the principal amount of and the accrued interest (including
any Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture.]
[If the Security is a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare an amount of principal of the Securities of this series to be
due and payable immediately, by a notice in writing to the Corporation (and to
the Trustee if given by
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<PAGE>
Holders) [if applicable, insert--, provided that, if upon an Event of Default,
the Trustee or such Holders fail to declare such principal amount of the
Outstanding Securities of this series to be immediately due and payable, the
holders of at least 25% in aggregate Liquidation Amount of the Preferred
Securities then Outstanding shall have the right to make such declaration by a
notice in writing to the Corporation and the Trustee]. The principal amount
payable upon such acceleration shall be equal to--insert formula for determining
the amount]. Upon any such declaration, such amount of the principal of and the
accrued interest (including any Additional Interest) on all the Securities of
this series shall become immediately due and payable, provided that the payment
of such principal and interest (including any Additional Interest) on all the
Securities of this series shall remain subordinated to the extent provided in
Article XIII of the Indenture. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal, premium
and interest (in each case to the extent that the payment of such interest shall
be legally enforceable), all of the Corporation's obligations in respect of the
payment of the principal of and premium and interest, if any, on this Security
shall terminate.]
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest [insert if applicable--(including any Additional Interest)] on
this Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Corporation maintained under Section 10.2 of the
Indenture for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation and the
Securities Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ and any integral multiple of $____________
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
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<PAGE>
Prior to due presentment of this Security for registration of transfer,
the Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Corporation and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
SECTION 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any Global
Security issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, bear a legend
in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR
A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
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<PAGE>
SECTION 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
-------------------------------------
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth or determined in the manner provided in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.6, 3.7, 9.6 or 11.6
and except for any Securities that, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided,
however, that the authorized aggregate principal amount of such series
may be increased above such amount by a Board Resolution to such effect;
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<PAGE>
(c) the Person to whom any interest in a Security of the series
shall be payable, if other than the Person in whose name that security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(d) the Stated Maturity or Maturities on which the principal of
the Securities of such series is payable or the method of determination
thereof, and any dates on which or circumstances under which, the
Corporation shall have the right to extend or shorten
such Stated Maturity or Maturities;
(e) the rate or rates, if any, or method of calculating the rate
or rates, if any, at which the Securities of such series shall bear
interest, if any, the rate or rates or method of calculating the rate or
rates and extent to which Additional Interest, if any, shall be payable
in respect of any Securities of such series, the date or dates from
which any such interest or Additional Interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the
right, pursuant to Section 3.12 or as otherwise set forth therein, of
the Corporation to defer or extend an Interest Payment Date, and the
Regular Record Date for the interest payable on any Interest Payment
Date or the method by which any of the foregoing shall be determined;
(f) the place or places where the principal of (and premium, if
any) and interest (including any Additional Interest) on the Securities
of such series shall be payable, the place or places where the
Securities of such series may be presented for registration of transfer
or exchange, any restrictions that may be applicable to any such
transfer or exchange in addition to or in lieu of those set forth
herein, and the place or places where notices and demands to or upon the
Corporation in respect of the Securities of such series may be made;
(g) the period or periods within or the date or dates on which,
if any, the price or prices at which and the terms and conditions upon
which the Securities of such series may be redeemed, in whole or in
part, at the option of the Corporation, and if other than by a Board
Resolution, the manner in which any election by the Corporation to
redeem such Securities shall be evidenced;
(h) the obligation or the right, if any, of the Corporation to
redeem, repay or purchase the Securities of such series pursuant to any
sinking fund, amortization or analogous provisions, or at the option of
a Holder thereof, and the period or periods within which, the price or
prices at which, the currency or currencies (including currency unit or
units) in which and the other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
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<PAGE>
(i) the denominations in which any Securities of such series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(j) if other than Dollars, the currency or currencies (including
any currency unit or units) in which the principal of (and premium, if
any) and interest and Additional Interest, if any, on the Securities of
the series shall be payable, or in which the Securities of the series
shall be denominated and the manner of determining the equivalent
thereof in Dollars for purposes of the definition of Outstanding;
(k) the additions, modifications or deletions, if any, in the
Events of Default or covenants of the Corporation set forth herein with
respect to the Securities of such series;
(l) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series that shall be payable
upon declaration of acceleration of the
Maturity thereof;
(m) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to
be the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(n) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary to permit
or facilitate the issuance of the Securities of such series in bearer
form, registrable or not registrable as to principal, and with or
without interest coupons;
(o) any index or indices used to determine the amount of payments
of principal of and premium, if any, on the Securities of such series or
the manner in which such amounts will be determined;
(p) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends that shall be borne
by any such Global Security in addition to or in lieu of that set forth
in Section 2.4 and any circumstances in addition to or in lieu of those
set forth in Section 3.6 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part
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<PAGE>
may be registered, in the name or names of Persons other than
the Depositary for such Global Security or a nominee thereof;
(q) the appointment of any Paying Agent or agents for the
Securities of such series;
(r) the terms of any right to convert or exchange Securities of
such series into any other securities or property of the Corporation,
and the additions or changes, if any, to this Indenture with respect to
the Securities of such series to permit or facilitate such conversion or
exchange;
(s) if such Securities are to be issued to an Issuer Trust, the
form or forms of the Trust Agreement, Guarantee Agreement and Expense
Agreement relating thereto;
(t) if other than as set forth herein, the relative degree, if
any, to which the Securities of the series shall be senior to or be
subordinated to other series of Securities in right of payment, whether
such other series of Securities are Outstanding or not;
(u) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 5.2;
(v) any addition to or change in the covenants set forth in
Article X which applies to Securities of the series; and
(w) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 9.1(6)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided herein or in or
pursuant to such Board Resolution and set forth, or determined in the manner
provided, in such Officers' Certificate or
in any indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Corporation
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
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SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without
coupons and shall be issuable in denominations of $1,000 and any integral
multiple thereof, unless otherwise specified as contemplated by Section 3.1.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation by Chief
Executive Officer, its President or one of its Executive Vice Presidents, under
its corporate seal reproduced or impressed thereon and attested by its Secretary
or one of its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Corporation
may deliver Securities of any series executed by the Corporation to the Trustee
for authentication, together with a Corporation Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Corporation
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been estab lished by or pursuant to one or
more Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in
conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Corporation in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Corporation, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
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If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner that
is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Corporation Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 3.10, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Corporation Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Securities of such series in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Corporation designated for that
purpose without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities, the Corporation shall execute and the Trustee
shall
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authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Securities. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be registered
in the name of the Depositary designated by the Corporation for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary advises the Trustee in writing that such
Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security, and the
Corporation is unable to locate a qualified successor, (ii) the Corporation
executes and delivers to the Trustee a Corporation Order stating that the
Corporation elects to terminate the book-entry system through the Depositary, or
(iii) there shall have occurred and be continuing an Event of Default.
(c) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Securities Registrar for exchange or cancellation as provided
in this Article III. If any Global Security is to be exchanged for other
Securities or cancelled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either
(i) such Global Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount thereof shall be
reduced, subject to Section 3.6(b)(v), or increased by an amount equal to the
portion thereof to be so exchanged or cancelled, or equal to the principal
amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security by the Depositary, accompanied by
registration instructions, the Trustee shall, subject to Section 3.5(b) and as
otherwise provided in this Article III, authenticate and deliver any Securities
issuable in exchange for such Global Security (or any portion thereof) in
accordance with the instructions of the Depositary. The Trustee shall not be
liable for any delay in delivery of such
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instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article III, Section 9.6 or 11.6 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.
(e) Securities distributed to holders of Book-Entry Preferred Securities
or Book-Entry Capital Securities (each as defined in the applicable Trust
Agreement) upon the dissolution of an Issuer Trust shall be distributed in the
form of one or more Global Securities registered in the name of a Depositary or
its nominee, and deposited with the Securities Registrar, as custodian for such
Depositary, or with such Depositary, for credit by the Depositary to the
respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct). Securities distributed to
holders of Preferred Securities other than Book-Entry Preferred Securities upon
the dissolution of an Issuer Trust shall not be issued in the form of a Global
Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.
(f) The Depositary or its nominee, as the registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
Neither the Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Depositary.
(g) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
SECTION 3.6. Registration, Transfer and Exchange Generally.
The Corporation shall cause to be kept at the Corporate Trust Office of
the Trustee a register in which, subject to such reasonable regulations as it
may prescribe, the Corporation shall provide for the registration of Securities
and of transfers of Securities. Such register is herein sometimes referred to as
the "Securities Register." The Trustee is hereby appointed "Securities
Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided.
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Upon surrender for registration of transfer of any Security at the
offices or agencies of the Corporation designated for that purpose the
Corporation shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of the same series of any authorized denominations of like tenor and aggregate
principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
the Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Corporation, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Securities Registrar, duly executed by
the Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Securities.
Neither the Corporation nor the Trustee shall be required, pursuant to
the provisions of this Section, (i) to issue, register the transfer of or
exchange any Security of any series during a period beginning at the opening of
business 15 days before the day of selection for redemption of Securities of
that series pursuant to Article XI and ending at the close of business on the
day of mailing of the notice of redemption, or (ii) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except,
in the case of any such Security to be redeemed in part, any portion thereof not
to be redeemed.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with
such security or indemnity as may be required by the Corporation or the Trustee
to save each of them harmless, the Corporation shall execute and the Trustee
shall authenticate and deliver in exchange
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therefor a new Security of the same series, of like tenor and aggregate
principal amount, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Corporation or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Corporation shall execute and upon its request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series, of like tenor and aggregate principal amount as
such destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Corporation may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.8. Payment of Interest and Additional Interest; Interest
Rights Preserved.
Interest and Additional Interest on any Security of any series that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date, shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest in respect of Securities of such series, except
that, unless otherwise provided in the Securities of such series, interest and
any Additional Interest payable on the Stated Maturity of the principal of a
Security shall be paid to the Person to whom principal is paid. The initial
payment of interest on any Security of any series that is issued between a
Regular Record Date and the related Interest Payment Date shall
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be payable as provided in such Security or in the Board Resolution pursuant to
Section 3.1 with respect to the related series of Securities.
Any interest on any Security that is due and payable, but is not timely
paid or duly provided for, on any Interest Payment Date for Securities of such
series (herein called "Defaulted Interest"), shall forthwith cease to be payable
to the registered Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Corporation, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Corporation shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Corporation shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest, which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Corporation of such Special Record Date and, in the name and at the expense of
the Corporation, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first class, postage
prepaid, to each Holder of a Security of such series at the address of such
Holder as it appears in the Securities Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the name and at
the expense of the Corporation, cause a similar notice to be published at least
once in a newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities)
are registered on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of the series in respect of which interest is
in default may be listed and, upon such
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notice as may be required by such exchange (or by the Trustee if the Securities
are not listed), if, after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such
other Security.
SECTION 3.9. Persons Deemed Owners.
The Corporation, the Trustee and any agent of the Corporation or the
Trustee shall treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment of principal of and
(subject to Section 3.8) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Corporation, the Trustee nor any agent of the Corporation or the Trustee shall
be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Corporation,
the Trustee and any agent of the Corporation or the Trustee as the owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Corporation, the Trustee or any agent of the
Corporation or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary or impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Corporation may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder that the Corporation
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities shall be destroyed by the Trustee and the Trustee shall deliver to
the Corporation a certificate of such destruction.
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SECTION 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
partial period shall be computed on the basis of a 360-day year of twelve 30-day
months and the actual number of days elapsed in any partial month in such
period, and interest on the Securities of each series for a full period shall be
computed by dividing the rate per annum by the number of interest periods that
together constitute a full twelve months.
SECTION 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect
to the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Corporation shall have the right, at any time
during the term of such series, from time to time to defer the payment of
interest on such Securities for such period or periods as may be specified as
contemplated by Section 3.1 (each, an "Extension Period"), during which
Extension Periods the Corporation shall, if so specified as contemplated by
Section 3.1, have the right to make partial payments of interest on any Interest
Payment Date. No Extension Period shall end on a date other than an Interest
Payment Date. At the end of any such Extension Period the Corporation shall pay
all interest then accrued and unpaid on the Securities (together with Additional
Interest thereon, if any, at the rate specified for the Securities of such
series to the extent permitted by applicable law); provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of the
Securities of such series; and provided further, however that during any such
Extension Period, the Corporation shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the 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 Securities of such series (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 any 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 an 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 Rights Plan, or the issuance of rights, stock or other property
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under any 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). Prior
to the termination of any such Extension Period, the Corporation may further
defer the payment of interest, provided that no Extension Period shall exceed
the period or periods specified in such Securities, extend beyond the Stated
Maturity of the principal of such Securities or end on a date other than an
Interest Payment Date. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due on any Interest Payment Date, the Corporation may elect to begin a new
Extension Period, subject to the above conditions. No interest or Additional
Interest shall be due and payable during an Extension Period, except at the end
thereof, but each installment of interest that would otherwise have been due and
payable during such Extension Period shall bear Additional Interest as and to
the extent as may be specified as contemplated by Section 3.1. The Corporation
shall give the Holders of the Securities of such series and the Trustee (and if
Securities of such series are held by an Issuer Trust, the Property Trustee and
Administrative Trustees of such Issuer Trust) notice of its election to begin
any such Extension Period at least one Business Day prior to the earlier of (i)
the next succeeding Interest Payment Date on which interest on Securities of
such series would be payable but for such election, (ii) the next succeeding
date on which Distributions on the Preferred Securities of such Issuer Trust
would be payable but for such election, and (iii) the date on which the
Administrative Trustee of such Issuer Trust would be required to give notice to
any securities exchange or other applicable self-regulatory organization or to
holders of such Preferred Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.
The Trustee shall promptly give notice of the Corporation's election to
begin any such Extension Period to the Holders of the Outstanding Securities of
such series.
SECTION 3.13. Right of Set-Off.
With respect to the Securities of a series initially issued to an Issuer
Trust, notwithstanding anything to the contrary herein, the Corporation shall
have the right to set off any payment it is otherwise required to make in
respect of any such Security to the extent the Corporation has theretofore made,
or is concurrently on the date of such payment making, a payment under the
Guarantee Agreement relating to such Security or to a holder of Preferred
Securities pursuant to an action undertaken under Section 5.8 of this Indenture.
The Corporation shall promptly notify the Trustee of its election to set off any
such payment pursuant to this Section 3.13.
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SECTION 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Corporation and,
by its acceptance of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Security agree that
for United States Federal, state and local tax purposes it is intended that such
Security constitutes indebtedness.
SECTION 3.15. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect
to the Securities of a particular series, the Corporation shall have the right
to (i) shorten the Stated Maturity of the principal of the Securities of such
series at any time to any date not earlier than the first date on which the
Company has the right to redeem the Securities of such series, and (ii) extend
the Stated Maturity of the principal of the Securities of such series at any
time at its election for one or more periods, but in no event to a date later
than the 49th anniversary of the first Interest Payment Date following the
Original Issue Date of the Securities of such series; provided that, if the
Company elects to exercise its right to extend the Stated Maturity of the
principal of the Securities of such series pursuant to clause (ii), above, at
the time such election is made and at the time of extension (A) the Company is
not in bankruptcy, otherwise insolvent or in liquidation, (B) the Company is not
in default in the payment of any interest or principal on such Securities, (C)
if the Issuer Trust has not been liquidated, such Issuer Trust is not in arrears
on payments of Distributions on the Preferred Securities issued by such Issuer
Trust and no deferred Distributions are accumulated and (D) after such
extension, the Securities shall not have a remaining term to maturity of more
than 30 years. In the event the Company elects to shorten or extend the Stated
Maturity of the Securities of such series, it shall give notice to the Trustee,
and the Trustee shall give notice of such shortening or extension to the
Holders, no less than 30 and no more than 60 days prior to the effectiveness
thereof.
SECTION 3.16. CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption and other similar or related materials as a convenience to
Holders; provided that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other materials
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Corporation Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of the
Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 3.7 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Corporation and thereafter
repaid to the Corporation or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at
the expense, of the Corporation,
and the Corporation, in the case of subclause (B)(i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose an amount in the currency or currencies
in which the Securities of such series are payable sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest (including any Additional Interest) to the date of
such deposit (in the case of Securities that have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be;
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(2) the Corporation has paid or caused to be paid all other sums payable
hereunder by the Corporation; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Trustee under Section 6.7 and to any
Authenticating Agent under Section 6.14 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by the Trustee, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest (including any Additional Interest) for the payment of which
such money or obligations have been deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body) except as may be specified pursuant to Section 3.1:
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension Period); or
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(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) failure on the part of the Corporation duly to observe or perform
any other of the covenants or agreements on the part of the Corporation in the
Securities of that series or in this Indenture for a period of 90 days after the
date on which written notice of such failure, requiring the Corporation to
remedy the same, shall have been given to the Corporation by the Trustee by
registered or certified mail or to the Corporation and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Corporation a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Corporation under the
Bankruptcy Code or any other similar applicable Federal or State law, which
decree or order shall have continued undischarged and unstayed for a period of
60 days; or the entry of a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of the Corporation or of its property, or for the
winding up or liquidation of its affairs, which decree or order shall have
continued undischarged and unstayed for a period of 60 days; or
(5) the commencement by the Corporation of voluntary proceedings to be
adjudicated a bankrupt, or consent by the Corporation to the filing of a
bankruptcy proceeding against it, or the filing by the Corporation of a petition
or answer or consent seeking reorganization under the Bankruptcy Code or any
other similar Federal or State law, or consent by the Corporation to the filing
of any such petition, or the consent by the Corporation to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it
or of its property, or the making by the Corporation of an assignment for the
benefit of creditors, or the admission by the Corporation in writing of its
inability to pay its debts generally as they become due; or
(6) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Corporation (and to the Trustee if given by Holders), provided
that, in the case of the Securities of a series issued to an
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Issuer Trust, if, upon an Event of Default, the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
fail to declare the principal of all the Outstanding Securities of such series
to be immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount (as defined in the related Trust Agreement) of the related
series of Preferred Securities issued by such Issuer Trust then outstanding
shall have the right to make such declaration by a notice in writing to the
Corporation and the Trustee; and upon any such declaration such principal amount
(or specified portion thereof) of and the accrued interest (including any
Additional Interest) on all the Securities of such series shall become
immediately due and payable. If an Event of Default specified in Section 5.1(4)
or 5.1(5) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of such series (or, if the
Securities of such series are Discount Securities, such portion of the principal
amount of such Securities as may be specified by the terms of that series) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable. Payment of principal
and interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding that such
amount shall become immediately due and payable as herein provided.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Corporation and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Corporation has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all Securities of such
series,
(B) any accrued Additional Interest on all Securities of such series,
(C) the principal of (and premium, if any, on) any Securities of such
series that have become due otherwise than by such declaration of acceleration
and interest and Additional Interest thereon at the rate borne by the
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and
all other amounts due to the Trustee under Section 6.7; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series that
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.13.
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In the case of Securities of a series initially issued to an Issuer
Trust, if the Holders of such Securities fail to annul such declaration and
waive such default, the holders of a majority in aggregate Liquidation Amount
(as defined in the related Trust Agreement) of the related series of Preferred
Securities issued by such Issuer Trust then outstanding shall also have the
right to rescind and annul such declaration and its consequences by written
notice to the Corporation and the Trustee, subject to the satisfaction of the
conditions set forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Corporation covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security of any series when such
interest becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (and premium, if
any, on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest), and, in addition thereto, all amounts owing the
Trustee under Section 6.7.
If the Corporation fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon such Securities and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Corporation or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Corporation or any other obligor upon the Securities
or the property of the Corporation or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Corporation for the payment of
overdue principal (and premium, if any) or interest (including any
Additional Interest)) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the
Securities and to file such other papers or documents as may be
necessary or advisable and to take any and all actions as are
authorized under the Trust Indenture Act in order to have the
claims of the Holders and any predecessor to the Trustee under
Section 6.7 allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee
for distribution in accordance with Section 5.6, and in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, subject to
Article XIII and after provision for the payment of all the amounts owing the
Trustee and any predecessor Trustee under Section 6.7, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon Securities of such series for principal (and premium, if any)
and interest (including any Additional Interest) in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture or for the appointment of a receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
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(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security of any series shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 3.8 and 3.12) interest (including any Additional Interest)
on such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder. In the case of Securities of a series issued
to an Issuer Trust, any registered holder of the series of Preferred Securities
issued by such Issuer Trust shall have the right, upon the occurrence of an
Event of Default described in Section 5.1(1) or 5.1(2), to institute a suit
directly against the Corporation for enforcement of payment to such holder of
principal of (and premium, if any) and (subject to Sections 3.8 and 3.12)
interest (including any Additional Interest) on the Securities having a
principal amount equal to the aggregate Liquidation Amount (as defined in the
related Trust Agreement) of such Preferred Securities held by such holder.
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SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities issued
by any Issuer Trust has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee, such Holder or such
holder of Preferred Securities, then and in every such case the Corporation, the
Trustee, such Holders and such holder of Preferred Securities shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, such Holder and such holder of Preferred Securities shall continue as
though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security with
respect to the Securities of the related Series or any holder of any Capital
Security to exercise any right or remedy accruing upon any Event of Default with
respect to the Securities of the related series shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein.
Every right and remedy given by this Article or by law to the Trustee or
to the Holders and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Preferred
Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
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(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, determine that the proceeding so directed
would be unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series affected thereby and, in the case of
any Securities of a series initially issued to an Issuer Trust, the holders of a
majority in aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the Preferred Securities issued by such Issuer Trust may waive any
past default hereunder and its consequences with respect to such series except a
default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series (unless such
default has been cured and the Corporation has paid to or deposited with the
Trustee a sum sufficient to pay all matured installments of interest (including
any Additional Interest) and all principal of (and premium, if any, on) all
Securities of that series due otherwise than by acceleration), or
(2) in respect of a covenant or provision hereof that under Article IX
cannot be modified or amended without the consent of each Holder of any
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all
the Securities of such series or, in the case of a waiver by holders of
Preferred Securities issued by such Issuer Trust, by all holders of Preferred
Securities issued by such Issuer Trust.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit
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for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in aggregate principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on any Security on or after
the respective Stated Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Corporation covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Corporation (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions that by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture.
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(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
Holders pursuant to Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of a series.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall
be subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or
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Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities of
such series; and provided, further, that, in the case of any default of the
character specified in Section 5.1(3), no such notice to Holders of Securities
of such series shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
that is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Corporation mentioned herein shall
be sufficiently evidenced by a Corporation Request or Corporation Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
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be entitled to examine the books, records and premises of the Corporation,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any default or
Event of Default with respect to the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible Officer shall have actual
knowledge of such default or Event of Default or (2) written notice of such
default or Event of Default shall have been given to the Trustee by the
Corporation or any other obligor on such Securities or by any Holder of such
Securities.
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Corporation, and neither the Trustee nor any Authenticating Agent assumes
any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Corporation of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent,
Securities Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Corporation.
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SECTION 6.7. Compensation and Reimbursement.
The Corporation agrees
(1) to pay to the Trustee from time to time compensation for all
services rendered by it hereunder in such amounts as the Corporation and the
Trustee shall agree from time to time (which compensation shall not be limited
by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable
to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
The provision of this Section 6.7 shall survive the resignation or
removal of the Trustee and the defeasance or other Termination of this
Indenture, in accordance with the provisions of
this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or 5.1(5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
(a) The Trustee for the Securities of any series issued hereunder shall
be subject to the provisions of Section 310(b) of the Trust Indenture Act.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the second to last
paragraph of said Section 310(b).
(b) The Trust Agreement and the Guarantee Agreement with respect to each
Issuer Trust shall be deemed to be specifically described in this Indenture for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
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SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of the
United States of America or of any State or Territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal, State, Territorial or District
of Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees, in either case having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section 6.9,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article VI.
Neither the Corporation nor any Person directly or indirectly controlling,
controlled by or under common control with the Corporation shall serve as
Trustee for the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article VI shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Corporation. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Corporation.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Corporation or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Corporation or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Corporation, acting pursuant to the authority of
a Board Resolution, may remove the Trustee with respect to the Securities of all
series issued hereunder, or (ii) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
such Holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to the Securities of
all series issued hereunder and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Corporation, by a Board
Resolution, shall promptly appoint a successor Trustee with respect to the
Securities of that or those series. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of such series delivered to the Corporation and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities of such
series and supersede the successor Trustee appointed by the Corporation. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Corporation or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, subject to Section 5.14, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Corporation shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class
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mail, postage prepaid, to the Holders of Securities of such series as their
names and addresses appear in the Securities Register. Each notice shall include
the name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Corporation and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Corporation or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Corporation,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect
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to the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Corporation shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Corporation.
If and when the Trustee shall be or become a creditor of the Corporation
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Corporation (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities, which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and
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obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, or of any
State or Territory thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent, which shall be acceptable to the Corporation and shall give notice of
such appointment in the manner provided in Section 1.6 to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
The Corporation agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By: --------------------------------
As Authenticating Agent
By: ________________________________
Authorized Officer
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION
SECTION 7.1. Corporation to Furnish Trustee Names and Addresses of
Holders.
The Corporation will furnish or cause to be furnished to the Trustee:
(a) semi-annually, on or before June 30 and December 31 of each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of a date not more than 15 days
prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Corporation of any such request,
a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided, however, that in the event the Trustee acts as Securities Registrar,
no such list need be furnished to the Trustee.
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SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Corporation and the Trustee that neither the Corporation nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) If required by Section 313(a) or such other applicable section of
the Trust Indenture Act, the Trustee shall, within 60 days after each May 15,
commencing May 15, 1998, deliver to Holders a brief report dated as of such May
15 that complies with the provisions of such
Section 313(a).
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed and also with the Commission. The Corporation will notify
the Trustee when any Securities are listed
on any securities exchange.
SECTION 7.4. Reports by Corporation.
The Corporation shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Corporation may not be required to remain
subject to
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the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Corporation shall continue to file with the Commission and provide the Trustee
with the annual reports and the information, documents and other reports which
are specified in Sections 13 and 15(d) of the Exchange Act. The Corporation also
shall comply with the other provisions of Trust Indenture Act Section 314(a).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Corporation May Consolidate, Etc., Only on Certain Terms.
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:
(1) if the Corporation shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Corporation is merged or the Person that acquires by conveyance or transfer,
or that leases, the properties and assets of the Corporation substantially as an
entirety shall be a corporation, partnership or trust organized and existing
under the laws of the United States of America or any State thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any)
and interest (including any Additional Interest) on all the Securities of every
series and the performance of every covenant of this Indenture on the part of
the Corporation to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have happened and be continuing; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and any such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with; and the Trustee, subject to Section
6.1, may rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section 8.1.
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SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Corporation with or into any
other Person, or any conveyance, transfer or lease by the Corporation of its
properties and assets substantially as an entirety to any Person in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Corporation is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Corporation under this Indenture with the same effect as if
such successor Person had been named as the Corporation herein; and in the event
of any such conveyance, transfer or lease the Corporation shall be discharged
from all obligations and covenants under this Indenture and the Securities.
Such successor Person may cause to be executed, and may issue either in
its own name or in the name of the Corporation, any or all of the Securities
issuable hereunder that theretofore shall not have been signed by the
Corporation and delivered to the Trustee; and, upon the order of such successor
Person instead of the Corporation and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities that previously shall have been signed and
delivered by the officers of the Corporation to the Trustee for authentication
pursuant to such provisions and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Corporation, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the
Corporation, and the assumption by any such successor of the covenants
of the Corporation herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or to surrender any right or power herein
conferred upon the Corporation; or
(3) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Corporation for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of the series specified) or to surrender any right or power herein
conferred upon the Corporation; or
(5) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of the series specified); or
(6) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall (a) become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture that is
entitled to the benefit of such provision or (b) not apply to any
Outstanding Securities; or
(7) to cure any ambiguity, to correct or supplement any provision
herein that may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (7) shall not adversely affect the interest of
the Holders of Securities of any series in any material respect or, in
the case of the Securities of a series issued to an Issuer Trust and for
so long as any of the corresponding series of Preferred Securities
issued by such Issuer Trust shall remain outstanding, the holders of
such Preferred Securities; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
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(9) to comply with the requirements of the Commission in order to
effect or maintain qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Corporation and
the Trustee, the Corporation, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security of each series affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest (including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the manner in calculating the rate of
interest thereon, or reduce the amount of principal of a Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the place of payment where, or the
coin or currency in which, any Security or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.5, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Security affected thereby;
provided, further, that, in the case of the Securities of a series issued to an
Issuer Trust, so long as any of the corresponding series of Preferred Securities
issued by such Issuer Trust remains outstanding, (i) no such amendment shall be
made that adversely affects the holders of such Preferred Securities in any
material respect, and no termination of this Indenture shall occur, and no
waiver of any Event of Default or compliance with any covenant under this
Indenture shall be effective, without the prior consent of the holders of at
least a majority of
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the aggregate Liquidation Amount (as defined in the related Trust Agreement) of
such Preferred Securities then outstanding unless and until the principal of
(and premium, if any, on) the Securities of such series and all accrued and
(subject to Section 3.8) unpaid interest (including any Additional Interest)
thereon have been paid in full, and (ii) no amendment shall be made to Section
5.8 of this Indenture that would impair the rights of the holders of Preferred
Securities issued by any Issuer Trust provided therein without the prior consent
of the holders of each such Capital Security then outstanding unless and until
the principal of (and premium, if any, on) the Securities of such series and all
accrued and (subject to Section 3.12) unpaid interest (including any Additional
Interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities or any corresponding
series of Preferred Securities of an Issuer Trust that holds the Securities of
any series, or that modifies the rights of the Holders of Securities of such
series or holders of such Preferred Securities of such corresponding series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series or
holders of Preferred Securities of any other such corresponding series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent herein provided for relating to such action have
been complied with. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Corporation, bear a notation in form approved by the Corporation as to any
matter provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Corporation, to any such supplemental indenture may be prepared
and executed by the Corporation and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including any Additional Interest) on the Securities of
that series in accordance with the terms of such
Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Corporation will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Corporation in respect of the Securities of that series and this
Indenture may be served. The Corporation initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The
Corporation will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Corporation shall fail
to maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Corporation
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
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The Corporation may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all of such purposes, and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Corporation of its obligation to maintain an office or agency in
each Place of Payment for Securities of any series for such purposes. The
Corporation will give prompt written notice to the Trustee of any such
designation and any change in the location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any, on) or interest on any of the Securities of
such series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
failure so to act.
Whenever the Corporation shall have one or more Paying Agents, it will,
prior to 10:00 a.m., New York City time, on each due date of the principal of
(or premium, if any) or interest (including any Additional Interest) on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest (including any Additional Interest) so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal (and premium, if any) or interest (including any
Additional Interest), and (unless such Paying Agent is the Trustee) the
Corporation will promptly notify the Trustee of its failure so to act.
The Corporation will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest (including any Additional Interest) on
the Securities of a series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Corporation (or
any other obligor upon such Securities) in the making of any payment of
principal (and premium, if any) or interest (including any Additional
Interest) in respect of any Security of any series;
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(3) at any time during the continuance of any default with
respect to a series of Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent with respect to such series; and
(4) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Corporation Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Corporation in trust for the payment of the principal of (and premium, if
any) or interest (including any Additional Interest) on any Security and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property
law) be paid on Corporation Request to the Corporation, or (if then held by the
Corporation) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Corporation for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Corporation as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Corporation cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Corporation.
SECTION 10.4. Statement as to Compliance.
The Corporation shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Corporation ending after the date hereof, a
certificate signed by the principal executive, accounting or financial officer
of the Corporation covering the preceding calendar year, stating whether or not
to the best knowledge of the signers thereof the Corporation is in default in
the performance, observance or fulfillment of or compliance with any of the
terms, provisions, covenants and conditions of this Indenture, and if the
Corporation shall be in
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default, specifying all such defaults and the nature and status thereof of which
they may have knowledge. For the purpose of this Section 10.4, compliance shall
be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Preferred Securities specified in
Section 9.2, if any, the Corporation may omit in any particular instance to
comply with any covenant or condition provided pursuant to Section 3.1, 9.1(3)
or 9.1(4) with respect to the Securities of any series, if before or after the
time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the
Corporation in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series initially issued to an Issuer
Trust, so long as no Event of Default has occurred and is continuing and except
as otherwise specified as contemplated by Section 2.1 or Section 3.1, if (i) an
Issuer Trust is the Holder of all of the Outstanding Securities of such series,
and (ii) a Tax Event has occurred and is continuing in respect of such Issuer
Trust, the Corporation shall pay to such Issuer Trust (and its permitted
successors or assigns under the related Trust Agreement) for so long as such
Issuer Trust (or its permitted successor or assignee) is the registered holder
of the Outstanding Securities of such series, such additional sums as may be
necessary in order that the amount of Distributions (including any Additional
Amounts (as defined in such Trust Agreement)) then due and payable by such
Issuer Trust on the related Preferred Securities and Common Securities that at
any time remain outstanding in accordance with the terms thereof shall not be
reduced as a result of any Additional Taxes arising from such Tax Event (the
"Additional Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or interest on the
Securities, such mention shall be deemed to include mention of the payments of
the Additional Sums provided for in this paragraph to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the deferral of the payment
of interest pursuant to Section 3.12 on the Securities shall not defer the
payment of any Additional Sums that may be due and payable.
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SECTION 10.7. Additional Covenants.
The Corporation covenants and agrees with each Holder of Securities of
each series that it shall not (x) declare or pay any dividends or distributions
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any shares of the Corporation's capital stock, or (y) 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 Securities of such series (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 any 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 an 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 Rights Plan, or the issuance of rights, stock or other property under
any 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 (A) of which the Corporation has actual knowledge that
with the giving of notice or the lapse of time, or both, would constitute an
Event of Default with respect to the Securities of such series, and (B) which
the Corporation shall not have taken reasonable steps to cure, (ii) if the
Securities of such series are held by an Issuer Trust, the Corporation shall be
in default with respect to its payment of any obligations under the Guarantee
Agreement relating to the Preferred Securities issued by such Issuer Trust, or
(iii) the Corporation shall have given notice of its election to begin an
Extension Period with respect to the Securities of such series as provided
herein and shall not have rescinded such notice, or such Extension Period, or
any extension thereof, shall be continuing.
The Corporation also covenants with each Holder of Securities of a
series issued to an Issuer Trust (i) to hold, directly or indirectly, 100% of
the Common Securities of such Issuer Trust, provided that any permitted
successor of the Corporation hereunder may succeed to the Corporation's
ownership of such Common Securities, (ii) as holder of such Common Securities,
not to voluntarily terminate, wind-up or liquidate such Issuer Trust, other than
(a) in connection with a distribution of the Securities of such series to the
holders of the related Preferred Securities in liquidation of such Issuer Trust,
or (b) in connection with certain
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mergers, consolidations or amalgamations permitted by the related Trust
Agreement, and (iii) to use its reasonable efforts, consistent with the terms
and provisions of such Trust Agreement, to cause such Issuer Trust to continue
not to be taxable as a corporation for United
States federal income tax purposes.
SECTION 10.8. Original Issue Discount.
For each year during which any Securities that were issued with original
issue discount are Outstanding, the Corporation shall furnish to each Paying
Agent in a timely fashion such information as may be reasonably requested by
each Paying Agent in order that each Paying Agent may prepare the information
which it is required to report for such year on Internal Revenue Service Forms
1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as
amended. Such information shall include the amount of original issue discount
includible in income for each $1,000 of principal amount at Stated Maturity of
outstanding Securities during such year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of This Article.
Redemption of Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Security
issued pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of a series shall be
subject to partial redemption only in the amount of $1,000 or any integral
multiples thereof.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Corporation, the Corporation shall, at least 45 days prior to
the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and, in the case of Securities of a series held by
an Issuer Trust, the Property Trustee under the related Trust Agreement, of such
date and of the principal amount of Securities of the applicable series to be
redeemed and provide the additional information required to be included in the
notice or notices contemplated by Section 11.4; provided that in the case of any
series of Securities initially issued to an Issuer Trust, for so long as such
Securities are held by such Issuer Trust, such notice shall be given
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not less than 45 nor more than 75 days prior to such Redemption Date (unless a
shorter notice shall be satisfactory to the Property Trustee under the related
Trust Agreement). In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities, the Corporation shall furnish the Trustee with an Officers'
Certificate and an Opinion of Counsel evidencing compliance with such
restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security that has been or is to be
redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than the
sixtieth day, prior to the Redemption Date, to each Holder of Securities to be
redeemed, at the address of such Holder as it appears in the Securities
Register, provided that in the case of any series of Securities initially issued
to an Issuer Trust, for so long as such Securities are held by such Issuer
Trust, such notice shall be given not less than 45 nor more than 75 days prior
to such Redemption Date (unless a shorter notice shall be satisfactory to the
Property Trustee under the related Trust Agreement).
With respect to Securities of each series to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the estimate of
the Redemption Price together with a statement that it is an estimate and that
the actual Redemption Price will be calculated on the third Business Day prior
to the Redemption Date (and if an estimate is provided, a further
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notice shall be sent of the actual Redemption Price on the date that such
Redemption Price is calculated);
(c) if less than all Outstanding Securities of such particular series
are to be redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of
the particular Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest
(including any Additional Interest) thereon, if any, shall cease to accrue on
and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the case;
(g) such other provisions as may be required in respect of the terms of
a particular series of Securities.
Notice of redemption of Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation and shall be
irrevocable. The notice if mailed in the manner provided above shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section 11.4, the
Corporation will deposit with the Trustee or with one or more Paying Agents (or
if the Corporation is acting as its own Paying Agent, the Corporation will
segregate and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the Redemption Price of, and any accrued interest (including
any Additional Interest) on, all the Securities (or portions thereof) that are
to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4,
the Securities or portion of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable
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Redemption Price, together with accrued interest (including any Additional
Interest) to the Redemption Date. On presentation and surrender of such
Securities at a Place of Payment in said notice specified, the said Securities
or the specified portions thereof shall be paid and redeemed by the Corporation
at the applicable Redemption Price, together with accrued interest (including
any Additional Interest) to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest
(including any Additional Interest) whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant record dates according to their terms and the provisions of Section
3.8.
Upon presentation of any Security redeemed in part only, the Corporation
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Corporation, a new Security or Securities of the
same series, of authorized denominations, in aggregate principal amount equal to
the unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and premium, if any, on such
Security shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 11.7. Right of Redemption of Securities Initially Issued to an
Issuer Trust.
In the case of the Securities of a series initially issued to an Issuer
Trust, except as otherwise specified as contemplated by Section 3.1, the
Corporation, at its option, may redeem such Securities (i) on or after the date
specified in such Security, in whole at any time or in part from time to time,
or (ii) upon the occurrence and during the continuation of a Tax Event, at any
time within 90 days following the occurrence and during the continuation of such
Tax Event or Capital Treatment Event, in whole (but not in part), in each case
at a Redemption Price of 100% unless specified in such Security, together with
accrued interest (including any Additional Interest) to the Redemption Date.
If less than all the Securities of any such series are to be redeemed,
the aggregate principal amount of such Securities remaining Outstanding after
giving effect to such redemption shall be sufficient to satisfy any provisions
of the Trust Agreement related to the Issuer Trust to which such Securities were
issued, including any requirement in such Trust Agreement as to the minimum
Liquidation Amount (as defined in such Trust Agreement) of Preferred Securities
that may be held by a holder of Preferred Securities thereunder.
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ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for
such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any sinking fund payment in excess of such minimum amount
that is permitted to be made by the terms of such Securities of any series is
herein referred to as an "optional sinking fund payment." If provided for by the
terms of any Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of such Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Securities of a series in cash, the Corporation may at its
option, at any time no more than 16 months and no less than 45 days prior to the
date on which such sinking fund payment is due, deliver to the Trustee
Securities of such series (together with the unmatured coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Corporation, except Securities of such series that have been redeemed through
the application of mandatory or optional sinking fund payments pursuant to the
terms of the Securities of such series, accompanied by a Corporation Order
instructing the Trustee to credit such obligations and stating that the
Securities of such series were originally issued by the Corporation by way of
bona fide sale or other negotiation for value; provided that the Securities to
be so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the
redemption price for such Securities, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Corporation will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the
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currency in which the Securities of such series are payable (except as provided
pursuant to Section 3.1) and the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities pursuant to Section 12.2 and
will also deliver to the Trustee any Securities to be so delivered. Such
Officers' Certificate shall be irrevocable and upon its delivery the Corporation
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the succeeding sinking fund payment date. In the case of the
failure of the Corporation to deliver such Officers' Certificate (or, as
required by this Indenture, the Securities and coupons, if any, specified in
such Officers' Certificate) by the due date therefor, the sinking fund payment
due on the succeeding sinking fund payment date for such series shall be paid
entirely in cash and shall be sufficient to redeem the principal amount of the
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit securities as provided in Section 12.2 and
without the right to make the optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Securities of any particular series shall be applied by the
Trustee (or by the Corporation if the Corporation is acting as its own Paying
Agent) on the sinking fund payment date on which such payment is made (or, if
such payment is made before a sinking fund payment date, on the sinking fund
payment date immediately following the date of such payment) to the redemption
of Securities of such series at the Redemption Price specified in such
Securities with respect to the sinking fund. Any and all sinking fund moneys
with respect to the Securities of any particular series held by the Trustee (or
if the Corporation is acting as its own Paying Agent, segregated and held in
trust as provided in Section 10.3) on the last sinking fund payment date with
respect to Securities of such series and not held for the payment or redemption
of particular Securities of such series shall be applied by the Trustee (or by
the Corporation if the Corporation is acting as its own Paying Agent), together
with other moneys, if necessary, to be deposited (or segregated) sufficient for
the purpose, to the payment of the principal of the Securities of such series at
Maturity. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 11.4. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Section 11.6. On or before each sinking fund payment
date, the Corporation shall pay to the Trustee (or, if the Corporation is acting
as its own Paying Agent, the Corporation shall segregate and hold in trust as
provided in Section 10.3) in cash a sum in the currency in which Securities of
such series are payable (except as provided pursuant to Section 3.1) equal to
the principal (and premium, if any) and any interest (including any Additional
Interest) accrued to the Redemption Date for Securities or portions thereof to
be redeemed on such sinking fund payment date pursuant to this Section 12.3.
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Neither the Trustee nor the Corporation shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Corporation, if the
Corporation is then acting as its own Paying Agent) shall redeem such Securities
if cash sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Corporation) for that purpose in accordance with the terms of
this Article XII. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case
such default or Event of Default shall have been cured or waived herein, such
moneys shall thereafter be applied on the next sinking fund payment date for the
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Indebtedness.
The Corporation covenants and agrees, and each Holder of a Security, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the payment of the
principal of (and premium, if any) and interest (including any Additional
Interest) on each and all of the Securities of each and every series are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness.
SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment
Over of Proceeds Upon Dissolution, Etc.
If the Corporation shall default in the payment of any principal of (or
premium, if any) or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, upon written notice of such
default to the Corporation by the holders of Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of (or premium, if
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<PAGE>
any) or interest (including any Additional Interest) on any of the Securities,
or in respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceedings relating to the Corporation, its creditors or its property, (b) any
proceeding for the liquidation, dissolution or other winding up of the
Corporation, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings, (c) any assignment by the Corporation for the benefit of
creditors or (d) any other marshalling of the assets of the Corporation (each
such event, if any, herein sometimes referred to as a "Proceeding"), all Senior
Indebtedness (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 to
any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Corporation or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any Proceeding) shall have
been paid in full.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of the Corporation ranking on a parity with
the Securities, shall be entitled to be paid from the remaining assets of the
Corporation the amounts at the time due and owing on account of unpaid principal
of (and premium, if any) and interest on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Corporation ranking junior to the Securities and such other obligations.
If, notwithstanding the foregoing, any payment or distribution of any character
or any security, whether in cash, securities or other property (other than
securities of the Corporation or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof and before all Senior Indebtedness shall have been paid in full, such
payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding in accordance
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<PAGE>
with the priorities then existing among such holders for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all such Senior Indebtedness in full. In the event of the failure of the
Trustee or any Holder to endorse or assign any such payment, distribution or
security, each holder of Senior Indebtedness is hereby irrevocably
authorized to endorse or assign the same.
The Trustee and the Holders shall take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Indebtedness or consent to the filing of a financing statement with respect
hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the time outstanding,
be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Corporation in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Corporation, otherwise ranking on
a parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities
or ranking junior to the Securities.
SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Corporation, at any time, except
during the pendency of the conditions described in the first paragraph of
Section 13.2 or of any Proceeding referred to in Section 13.2, from making
payments at any time of principal of (and premium, if any) or interest
(including any Additional Interest) on the Securities, or (b) the application by
the Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on
all Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of
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<PAGE>
all indebtedness of the Corporation that by its express terms is subordinated to
Senior Indebtedness of the Corporation to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by Holders of the Securities or the Trustee, shall, as among the Corporation,
its creditors other than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by the Corporation to or
on account of the Senior Indebtedness.
SECTION 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as between the Corporation and the Holders of
the Securities, the obligations of the Corporation, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Corporation of the
Holders of the Securities and creditors of the Corporation other than their
rights in relation to the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security (or to the extent expressly provided
herein, the holder of any Capital Security) from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
including filing and voting claims in any Proceeding, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination provided
in this Article and appoints the Trustee his or her attorney-in-fact for any and
all such purposes.
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<PAGE>
SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Corporation or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Corporation with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness may, at any time and from to time,
without the consent of or notice to the Trustee or the Holders of the Securities
of any series, without incurring responsibility to such Holders of the
Securities and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of such Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Corporation and any other Person.
SECTION 13.8. Notice to Trustee.
The Corporation shall give prompt written notice to the Trustee of any
fact known to the Corporation that would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Corporation or a holder of Senior Indebtedness or from any trustee, agent or
representative therefor; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least two Business Days
prior to the date upon which by the terms hereof any monies may become payable
for any purpose (including, the payment of the principal of (and premium, if
any, on) or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any notice
to the contrary that may be received by it within two Business Days prior to
such date.
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<PAGE>
Subject to the provisions of Section 6.1, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself or herself to be a holder of Senior Indebtedness (or a trustee or
attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee or attorney-in-fact therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Corporation referred
to in this Article, the Trustee, subject to the provisions of Section 6.1, and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Corporation, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
shall not be liable to any such holders if it shall in good faith mistakenly pay
over or distribute to Holders of Securities or to the Corporation or to any
other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness that
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
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<PAGE>
SECTION 13.12. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall have been
appointed by the Corporation and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
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<PAGE>
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DIME BANCORP, INC.
By: /s/ D. James Daras
------------------------------------
Name: D. James Daras
Title:Executive Vice President and
Treasurer
Attest: /s/ Michael J. Getzler
-------------------------
Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ A.K. Crain
------------------------------------
Name: Andrea Koster-Crain
Title:Vice President
Attest: /s/ Kathleen Perry
-------------------------
Second Vice President
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NY12532: 198427.9
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<PAGE>
Exhibit 4.2
Form of
DIME BANCORP, INC.
9.33% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, SERIES A
No. A-1 $206,186,000
DIME BANCORP, INC., a corporation organized and existing under the laws of
Delaware (hereinafter called the "Corporation," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to The Chase Manhattan Bank, as Property
Trustee of Dime Capital Trust I or its registered assigns, the principal sum of
Two Hundred Six Million One Hundred Eighty-six Thousand Dollars ($206,186,000)
on May 6, 2027; provided that the Corporation may shorten the Stated Maturity of
the principal of this Security to a date not earlier than May 6, 2012, in the
circumstances described on the reverse hereof. The Corporation further promises
to pay interest on said principal sum from May 6, 1997, or from the most recent
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, semi-annually (subject to deferral as set forth
herein) in arrears on May 6 and November 6 of each year, commencing November 6,
1997, at the rate of 9.33% per annum, until the principal hereof is paid or duly
provided for or made available for payment; provided that any overdue principal,
premium or Additional Sums and any overdue installment of interest shall bear
Additional Interest at the rate of 9.33% per annum (to the extent that the
payment of such interest shall be legally enforceable), compounded semi-
annually, from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand. The amount
of interest payable for any period less than a full interest period shall be
computed on the basis of a 360-day year of twelve 30-day months and the actual
days elapsed in a partial month in such period. The amount of interest payable
for any full interest period shall be computed by dividing the applicable rate
per annum by two. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest installment (whether or not a Business Day), next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record
Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
So long as no Event of Default has occurred and is continuing, the
Corporation shall have the right, at any time during the term of this Security,
from time to time to defer the payment of interest on this Security for up to
ten consecutive semi-annual interest payment periods with respect to each
deferral period (each an "Extension Period") at the end of which the Corporation
shall pay all interest then accrued and unpaid including any Additional
Interest, as provided below; provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of this
<PAGE>
Security and no such Extension Period may end on a date other than an Interest
Payment Date; and provided, further, however, that during any such Extension
Period, the Corporation shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the 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 this Security (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 any 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 an 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 Rights Plan, or the issuance of rights, stock or other property under
any 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). Prior to the termination of any
such Extension Period, the Corporation may further defer the payment of
interest, provided that no Extension Period shall exceed ten consecutive semi-
annual interest payment periods, extend beyond the Stated Maturity of the
principal of this Security or end on a date other than an Interest Payment Date.
Upon the termination of any such Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due on any Interest
Payment Date, the Corporation may elect to begin a new Extension Period, subject
to the above conditions. No interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension shall bear
Additional Interest (to the extent that the payment of such interest shall be
legally enforceable) at the rate of 9.33% per annum, compounded semi-annually
and calculated as set forth in the first paragraph of this Security, from the
dates on which amounts would otherwise have been due and payable until paid or
made available for payment. The Corporation shall give the Holder of this
Security and the Trustee notice of its election to begin any Extension Period at
least one Business Day prior to the next succeeding Interest Payment Date on
which interest on this Security would be payable but for such election or so
long as such Securities are held by Dime Capital Trust I at least one Business
Day prior to the earlier of (i) the next succeeding date on which Distributions
on the Capital Securities of such Issuer Trust would be payable but for such
deferral, and (ii) the date on which the Property Trustee of such Issuer Trust
is required to give notice to any securities exchange or other applicable self-
regulatory organization or to holders of such Capital Securities of the record
date or the date such Distributions are payable.
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<PAGE>
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Corporation maintained for
that purpose in the United States, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Corporation payment
of interest may be made (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities Register, or
(ii) by wire transfer in immediately available funds at such place and to such
account as may be designated by the Person entitled thereto as specified in the
Securities Register.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided, and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-3-
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this certificate
representing $206,186,000 aggregate principal amount of its 9.33% Junior
Subordinated Deferrable Interest Debentures, Series A to be duly executed under
its corporate seal.
Dime Bancorp, Inc.
By: /s/ D. James Daras
--------------------
Name: D. James Daras
Title: Executive Vice President and Treasurer
Attest: /s/ Paul Marcotrigiano
------------------------
Assistant Secretary
-4-
<PAGE>
This is one of the Junior Subordinated Deferrable Interest Debentures
referred to in the within mentioned Indenture.
Dated: May 6, 1997
The Chase Manhattan Bank,
as Trustee
By: /s/ A.K. Crain
----------------
Authorized Officer
-5-
<PAGE>
[Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under the Junior Subordinated Indenture, dated as of May 6, 1997
(herein called the "Indenture"), between the Corporation and The Chase Manhattan
Bank, as Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Corporation, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof
limited in aggregate principal amount to $206,186,000.
All terms used in this Security that are defined in the Indenture or in the
Amended and Restated Trust Agreement, dated as of May 6, 1997 (as modified,
amended or supplemented from time to time, the "Trust Agreement"), relating to
Dime Capital Trust I (the "Issuer Trust") among the Corporation, as Depositor,
the Trustees named therein and the Holders from time to time of the Trust
Securities issued pursuant thereto, shall have the meanings assigned to them in
the Indenture or the Trust Agreement, as the case may be.
The Corporation may at any time, at its option, on or after May 6, 2007,
and subject to the terms and conditions of Article XI of the Indenture, redeem
this Security in whole at any time or in part from time to time, at the
following Redemption Prices (expressed as percentages of the principal amount
hereof), if redeemed during the 12-month period beginning May 6,
Redemption
Year Price
---- ----------
2007 104.665%
2008 104.199
2009 103.732
2010 103.266
2011 102.799
2012 102.333
2013 101.866
2014 101.400
2015 100.933
2016 100.467
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, together, in the case of any such redemption, with accrued and unpaid
interest, including any Additional Interest, to but excluding the date fixed for
redemption.
-6-
<PAGE>
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
If at any time a Tax Event or a Capital Treatment Event occurs and (i) in
the opinion of counsel to the Corporation experienced in such matters, there
would in all cases, after effecting the termination of any Issuer Trust which
holds this Security and the distribution of this Security to the holders of the
Trust Securities of such Issuer Trust in exchange therefor, be more than an
insubstantial risk that an Adverse Tax Consequence (as defined below) would
continue to exist, (ii) in the reasonable determination of the Corporation,
there would in all cases, after effecting the termination of any Issuer Trust
which holds this Security and the distribution of this Security to the holders
of the Trust Securities of such Issuer Trust in exchange therefor, be more than
an insubstantial risk that the Corporation would not be entitled to treat an
amount equal to the Liquidation Amount of such Preferred Securities of such
Issuer Trust as "Tier 1 Capital" (or the then equivalent thereof) for purposes
of the Holding Company Capital Rules, as then in effect and applicable to the
Corporation, or (iii) this Security is not held by a Trust, then the Corporation
shall have the right (a) to shorten the Stated Maturity of this Security to the
minimum extent required, but in any event to a date not earlier than May 6, 2012
(the action referred to in this clause (a) being referred to herein as a
"Maturity Advancement"), such that, in the opinion of counsel to the Corporation
experienced in such matters, after advancing the Stated Maturity, interest paid
hereon will be deductible for United States federal income tax purposes, or (b)
if either (x) in the opinion of counsel to the Corporation experienced in such
matters, there would in all cases, after effecting a Maturity Advancement, be
more than an insubstantial risk that an Adverse Tax Consequence would continue
to exist, or (y) in the reasonable determination of the Corporation, there would
in all cases, after effecting a Maturity Advancement, be more than an
insubstantial risk that the Corporation would not be entitled to treat an amount
equal to the Liquidation Amount of the Preferred Securities of an Issuer Trust
holding this Security, if any, as "Tier 1 Capital" (or the then equivalent
thereof) for purposes of the Holding Company Capital Rules, as then in effect
and applicable to the Corporation, to redeem this Security, in whole but not in
part, at any time within 90 days following the occurrence of the Tax Event or
Capital Treatment Event, at a Redemption Price equal to (x) if such redemption
occurs on or after May 6, 2007, the Redemption Price set forth above, and (y) if
such redemption occurs prior to May 6, 2007, the greater of (i) 100% of the
principal amount hereof, and (ii) as determined by a Quotation Agent (as defined
below) as of the Redemption Date, the sum of the present values of the principal
amount and premium payable as part of the Redemption Price with respect to an
optional redemption hereof on May 6, 2007 as set forth in the second preceding
paragraph, together with the scheduled payments of interest from the Redemption
Date to May 6, 2007 (the "Remaining Life"), in each case discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
30-day months) at the Adjusted Tax/Capital Treasury Rate (as defined herein).
If the Corporation does not become subject to the Holding Company
Capital Rules by May 6, 2002, then the Corporation will have the right, if
certain conditions are met, to redeem this Security in whole (but not in part)
and thereby cause the mandatory redemption of the Series A Capital Securities at
a Redemption Price equal to the greater of (i) 100% of the principal amount
thereof or (ii) as determined by a Quotation Agent as of the Redemption Date,
the sum of the present values of the principal amount and premium payable as
part of the Redemption Price with
-7-
<PAGE>
respect to an optional redemption hereof on May 6, 2007 as set forth in the
third preceding paragraph, together with scheduled payments of interest from the
Redemption Date to May 6, 2007 (also, the "Remaining Life"), in each case
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of 30-day months) at the Adjusted Regulatory Treasury Rate (as
defined below).
"Adverse Tax Consequence" means any of the following circumstances:
(i) an Issuer which holds this Security is, or within 90 days of the Opinion of
Counsel giving rise to a Tax Event, will be subject to United States federal
income tax with respect to income received or accrued on this Security, (ii)
interest payable by the Corporation on this Security is not, or within 90 days
of the date of such Opinion of Counsel will not be, deductible by the
Corporation, in whole or in part, for United States federal income tax purposes
or (iii) an Issuer Trust which holds this Security is, or within 90 days of the
date of such Opinion of Counsel, will be subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Adjusted Tax/Capital Treasury Rate" means, with respect to any
Redemption Date, the Treasury Rate (as defined herein) plus (i) 1.50% if such
Redemption Date occurs on or before May 6, 1998, or (ii) 0.50 % if such
Redemption Date occurs after May 6, 1998.
"Adjusted Regulatory Treasury Rate" means, with respect to any
Redemption Date, the Treasury Rate plus 0.50%.
"Comparable Treasury Issue" means, with respect to any Redemption
Date, the U.S. Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life, provided that if no United States Treasury security has a maturity that is
within a period from three months before to three months after May 6, 2007, the
two most closely corresponding United States Treasury securities shall be used
as the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (A) the arithmetic mean of five Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the arithmetic mean of all such
Quotations.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Quotation Agent" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated and its successors; provided, however, that if the foregoing shall
cease to be a primary U.S. Government securities dealer in The City of New York
(a "Primary Treasury Dealer"), the Corporation shall substitute therefor another
Primary Treasury Dealer.
-8-
<PAGE>
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Trustee after consultation with
the Corporation.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the arithmetic mean, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means (i) the yield, under the heading that represents
the average for the week immediately prior to the calculation date, appearing in
the most recently published statistical release designated H.15(519) or any
successor publication that is published weekly by the Federal Reserve and that
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date. The Treasury Rate shall be calculated on the third
Business Day preceding the Redemption Date.
The provisions of Section 11.7 of the Indenture shall not apply to this
Security.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Corporation with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Corporation and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Corporation and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Corporation with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
-9-
<PAGE>
As provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to the Securities of this series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Outstanding Securities
of this series may declare the principal amount of all the Securities of this
series to be due and payable immediately, by a notice in writing to the
Corporation (and to the Trustee if given by Holders) provided that, if upon an
Event of Default, the Trustee or such Holders fail to declare the principal of
all the Outstanding Securities of this series to be immediately due and payable,
the holders of at least 25% in aggregate Liquidation Amount of the Capital
Securities then Outstanding shall have the right to make such declaration by a
notice in writing to the Corporation and the Trustee; and upon any such
declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest (including any Additional Interest) on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation maintained under Section 10.2 of the Indenture for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the Securities Registrar,
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
-10-
<PAGE>
The Corporation and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
--------------------
-11-
<PAGE>
Exhibit 4.3
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
among
DIME BANCORP, INC.,
as Depositor
THE CHASE MANHATTAN BANK,
as Property Trustee
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and the Holders from time to time of the Trust Securities
-------------------------------
Dated as of May 6, 1997
-------------------------------
DIME CAPITAL TRUST I
================================================================================
<PAGE>
DIME CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- --------------- -------------
<S> <C>
(ss.) 310 (a)(1)............................................................................. 8.7
(a)(2)............................................................................. 8.7
(a)(3)............................................................................. 8.9
(a)(4)............................................................................. 2.7(a)(ii)
(b)................................................................................ 8.8
(ss.) 311 (a)................................................................................ 8.13
(b)................................................................................ 8.13
(ss.) 312 (a)................................................................................ 5.8
(b)................................................................................ 5.8
(c)................................................................................ 5.8
(ss.) 313 (a)................................................................................ 8.15(a)
(a)(4)............................................................................. 8.15(b)
(b)................................................................................ 8.15(b)
(c)................................................................................ 10.8
(d)................................................................................ 8.15(c)
(ss.) 314 (a)................................................................................ 8.16
(b)................................................................................ Not Applicable
(c)(1)............................................................................. 8.17
(c)(2)............................................................................. 8.17
(c)(3)............................................................................. Not Applicable
(d)................................................................................ Not Applicable
(e)................................................................................ 1.1, 8.17
(ss.) 315 (a)................................................................................ 8.1(a), 8.3(a)
(b)................................................................................ 8.2, 10.8
(c)................................................................................ 8.1(a)
(d)................................................................................ 8.1, 8.3
(e)................................................................................ Not Applicable
(ss.) 316 (a)................................................................................ Not Applicable
(a)(1)(A).......................................................................... Not Applicable
(a)(1)(B).......................................................................... Not Applicable
(a)(2)............................................................................. Not Applicable
(b)................................................................................ 5.15
(c)................................................................................ 6.7
(ss.) 317 (a)(1)............................................................................. Not Applicable
(a)(2)............................................................................. Not Applicable
(b)................................................................................ 5.10
(ss.) 318 (a)................................................................................ 10.10
</TABLE>
- ----------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
- i -
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I.
DEFINED TERMS
<S> <C> <C>
SECTION 1.1. Definitions............................................................................1
<CAPTION>
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
<S> <C> <C>
SECTION 2.1. Name..................................................................................10
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business...........................10
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.......................10
SECTION 2.4. Issuance of the Capital Securities....................................................10
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debentures............................................................11
SECTION 2.6. Continuation of Trust.................................................................11
SECTION 2.7. Authorization to Enter into Certain Transactions......................................11
SECTION 2.8. Assets of Trust.......................................................................15
SECTION 2.9. Title to Trust Property...............................................................15
<CAPTION>
ARTICLE III.
PAYMENT ACCOUNT
<S> <C> <C>
SECTION 3.1. Payment Account.......................................................................16
<CAPTION>
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
<S> <C> <C>
SECTION 4.1. Distributions.........................................................................16
SECTION 4.2. Redemption............................................................................17
SECTION 4.3. Subordination of Common Securities....................................................19
SECTION 4.4. Payment Procedures....................................................................19
SECTION 4.5. Tax Returns and Reports...............................................................20
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust....................................20
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions................................20
</TABLE>
- ii -
<PAGE>
<TABLE>
<CAPTION>
ARTICLE V.
TRUST SECURITIES CERTIFICATES
<S> <C> <C>
SECTION 5.1. Initial Ownership.....................................................................20
SECTION 5.2. The Trust Securities Certificates.....................................................20
SECTION 5.3. Execution and Delivery of Trust Securities Certificates...............................21
SECTION 5.4. Book-Entry Capital Securities.........................................................21
SECTION 5.5. Registration of Transfer and Exchange
of Capital Securities Certificates....................................................23
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates....................24
SECTION 5.7. Persons Deemed Holders................................................................25
SECTION 5.8. Access to List of Holders' Names and Addresses........................................25
SECTION 5.9. Maintenance of Office or Agency.......................................................25
SECTION 5.10. Appointment of Paying Agent...........................................................25
SECTION 5.11. Ownership of Common Securities by Depositor...........................................26
SECTION 5.12. Notices to Clearing Agency............................................................26
SECTION 5.13. Rights of Holders; Waivers of Past Defaults...........................................26
<CAPTION>
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
<S> <C> <C>
SECTION 6.1. Limitations on Voting Rights..........................................................28
SECTION 6.2. Notice of Meetings....................................................................29
SECTION 6.3. Meetings of Holders of the Capital Securities.........................................29
SECTION 6.4. Voting Rights.........................................................................30
SECTION 6.5. Proxies, etc..........................................................................30
SECTION 6.6. Holder Action by Written Consent......................................................30
SECTION 6.7. Record Date for Voting and Other Purposes.............................................30
SECTION 6.8. Acts of Holders.......................................................................30
SECTION 6.9. Inspection of Records.................................................................31
<CAPTION>
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
<S> <C> <C>
SECTION 7.1. Representations and Warranties of the Property Trustee................................32
SECTION 7.2. Representations and Warranties of the Delaware Trustee................................33
SECTION 7.3. Representations and Warranties of Depositor...........................................33
</TABLE>
- iii -
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VIII.
THE ISSUER TRUSTEES
<S> <C> <C>
SECTION 8.1. Certain Duties and Responsibilities...................................................34
SECTION 8.2. Certain Notices.......................................................................36
SECTION 8.3. Certain Rights of Property Trustee....................................................36
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities................................38
SECTION 8.5. May Hold Securities...................................................................39
SECTION 8.6. Compensation; Indemnity; Fees.........................................................39
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer Trustees...................40
SECTION 8.8. Conflicting Interests.................................................................40
SECTION 8.9. Co-Trustees and Separate Trustee......................................................40
SECTION 8.10. Resignation and Removal; Appointment of Successor.....................................42
SECTION 8.11. Acceptance of Appointment by Successor................................................43
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business...........................44
SECTION 8.13. Preferential Collection of Claims Against Depositor or Issuer Trust...................44
SECTION 8.14. Property Trustee May File Proofs of Claim.............................................44
SECTION 8.15. Reports by Property Trustee...........................................................45
SECTION 8.16. Reports to the Property Trustee.......................................................45
SECTION 8.17. Evidence of Compliance with Conditions Precedent......................................45
SECTION 8.18. Number of Issuer Trustees.............................................................45
SECTION 8.19. Delegation of Power...................................................................46
SECTION 8.20. Appointment of Administrative Trustees................................................46
<CAPTION>
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
<S> <C> <C>
SECTION 9.1. Termination Upon Expiration Date......................................................47
SECTION 9.2. Early Termination.....................................................................47
SECTION 9.3. Termination...........................................................................47
SECTION 9.4. Liquidation...........................................................................47
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of Issuer Trust.......................................................49
<CAPTION>
ARTICLE X.
MISCELLANEOUS PROVISIONS
<S> <C> <C>
SECTION 10.1. Limitation of Rights of Holders.......................................................50
SECTION 10.2. Amendment.............................................................................50
SECTION 10.3. Separability..........................................................................51
SECTION 10.4. Governing Law.........................................................................51
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 10.5. Payments Due on Non-Business Day......................................................51
SECTION 10.6. Successors............................................................................51
SECTION 10.7. Headings..............................................................................52
SECTION 10.8. Reports, Notices and Demands..........................................................52
SECTION 10.9. Agreement Not to Petition.............................................................52
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act. ..............................53
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee Agreement,
Expense Agreement and Indenture.......................................................53
</TABLE>
Exhibit A Certificate of Trust
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Capital Securities Certificate
-v-
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of May 6, 1997, among
(i) DIME BANCORP, INC., a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) THE CHASE MANHATTAN BANK, a New York banking
corporation, as property trustee (in such capacity, the "Property Trustee"),
(iii) CHASE MANHATTAN BANK DELAWARE, a Delaware banking corporation, as Delaware
trustee (in such capacity, the "Delaware Trustee"), (iv) Gene C. Brooks an
individual, and D. James Daras, an individual, each of whose address is c/o Dime
Bancorp, Inc., 589 Fifth Avenue, New York, New York 10017 (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees being
referred to collectively as the "Issuer Trustees"), and (v) the several Holders,
as hereinafter defined from time to time of the Trust Securities.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
have heretofore duly declared and established a business trust under the name
"Dime Capital Trust I" pursuant to the Delaware Business Trust Act by entering
into the Declaration of Trust, dated as of April 4, 1997 (the "Original Trust
Agreement"), and by the execution and filing by the Delaware Trustee with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on April 4, 1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Issuer Trust to the Depositor, (ii) the issuance and sale of the Capital
Securities by the Issuer Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Debentures, and (iv) the appointment of the Property Trustee
and the Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
<PAGE>
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) The words "include," "includes" and "including" are deemed to be
followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles;
(e) Unless the context otherwise requires, any reference to an
"Article," a "Section" or an "Exhibit" refers to an Article, a Section or an
Exhibit, as the case may be, of or to this Trust Agreement; and
(f) The words "hereby." "herein," "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the Persons appointed in
accordance with Section 8.20 solely in such Person's capacity as Administrative
Trustee of the Issuer Trust heretofore formed and continued hereunder and not in
such Person's individual capacity, or any successor Administrative Trustee
appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Capital Security, the rules and procedures of
the Clearing Agency for such Book-Entry Capital Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or
- 2 -
<PAGE>
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or
the Strategic Planning Committee of the board of directors of the Depositor (or
any other committee of the board of directors of the Depositor performing
similar functions) or a committee designated by the board of directors of the
Depositor (or any such committee), comprised of two or more members of the board
of directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Board of Directors, or officers of the Depositor to which authority to
act on behalf of the Board of Directors has been delegated and to be in full
force and effect on the date of such certification, and delivered to the Issuer
Trustees.
"Book-Entry Capital Securities Certificate" means a Capital
Securities Certificate evidencing ownership of Book-Entry Capital Securities.
"Book-Entry Capital Security" means a Capital Security, the ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 5.4.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as Exhibit
E.
"Capital Security" means a preferred undivided beneficial interest in
the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
- 3 -
<PAGE>
"Certificate Depository Agreement" means the agreement among the
Issuer Trust, the Depositor and DTC, as the initial Clearing Agency, dated as of
the Closing Date, substantially in the form attached as Exhibit B, as the same
may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Capital Securities and in whose name or in the name of a nominee of that
organization shall be registered one or more Global Capital Securities and that
shall undertake to effect book entry transfers and pledges of the Capital
Securities. DTC will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the date of the Time of Delivery, which date is
also the date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means a common undivided beneficial interest in the
Issuer Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution to the extent provided herein.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in New
York, New York, and (ii) when used with respect to the Debenture Trustee, the
principal office of the Debenture Trustee located in New York, New York.
"Debenture Event of Default" means any "Event of Default" specified
in Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to
be redeemed under the Indenture, the date fixed for redemption of such
Debentures under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the
Indenture.
"Debenture Trustee" means the Person identified as the "Trustee" in
the Indenture, solely in its capacity as Trustee pursuant to the Indenture and
not in its individual capacity, or its successor in interest in such capacity,
or any successor Trustee appointed as provided in the Indenture.
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"Debentures" means the Depositor's 9.33% Junior Subordinated
Deferrable Interest Debentures, Series A, issued pursuant to the Indenture.
"Definitive Capital Securities Certificates" means either or both (as
the context requires) of (i) Capital Securities Certificates issued as
Book-Entry Capital Securities Certificates as provided in Section 5.2 or 5.4,
and (ii) Capital Securities Certificates issued in certificated, fully
registered form as provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Delaware Trustee of the trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Delaware Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a)
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for
a period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach of any covenant or warranty
of the Issuer Trustees in this Trust Agreement (other than those
specified in clause (b) or (c) above) and continuation of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Issuer Trustees and to the
Depositor by the Holders of at least 25% in aggregate Liquidation
Amount of the Outstanding Capital Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
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(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within
90 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities, dated as of the Closing Date, between the Depositor and the Issuer
Trust, substantially in the form attached as Exhibit D, as amended from time to
time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and The Chase Manhattan Bank, as guarantee trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Capital Securities, as amended from time to
time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of May
6, 1997, between the Depositor and the Debenture Trustee, as trustee, as amended
or supplemented from time to time.
"Issuer Trust" means the Delaware business trust heretofore known as
"Dime Capital Trust I," which was formed on April 4, 1997 under the Delaware
Business Trust Act pursuant to the Original Trust Agreement and the filing of
the Certificate of Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this
Trust Agreement.
"Investment Company Act" means the Investment Company Act of 1940, or
any successor statute thereto, in each case as amended from time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of 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, (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Issuer Trust, Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debentures are
distributed, and (c) with respect to any distribution of Additional Amounts to
Holders of Trust Securities, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities in respect of which such distribution
is made.
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"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date of the dissolution, winding-up or
termination of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section
9.4(d).
"Majority in Liquidation Amount of the Capital Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Capital Securities or Common Securities, as
the case may be, representing more than 50% of the aggregate Liquidation Amount
of all then Outstanding Capital Securities or Common Securities, as the case may
be.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President or an Executive Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Depositor, and delivered to the Issuer Trustees. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor,
and who shall be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding," when used with respect to Trust Securities, means, as
of the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent; provided that, if such Trust Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
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(c) Trust Securities that have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor or any Affiliate of the Depositor shall be
disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Issuer Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Capital
Securities that such Issuer Trustee knows to be so owned shall be so
disregarded, and (b) the foregoing shall not apply at any time when all of the
outstanding Capital Securities are owned by the Depositor and/or any such
Affiliate. Capital Securities so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Capital Securities and that the pledgee is not the Depositor or any Affiliate of
the Depositor.
"Owner" means each Person who is the beneficial owner of Book-Entry
Capital Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the Holders
in which all amounts paid in respect of the Debentures will be held and from
which the Property Trustee, through the Paying Agent, shall make payments to the
Holders in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Property Trustee of the trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Property Trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount
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of the premium, if any, paid by the Depositor upon the concurrent redemption of
a Like Amount of Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Successor Capital Securities" of any particular Capital Securities
Certificate means every Capital Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer Trust
as that evidenced by, such particular Capital Securities Certificate; and, for
the purposes of this definition, any Capital Securities Certificate executed and
delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Capital Securities Certificate.
"Time of Delivery" means the Closing Time as defined in and as
specified in the Underwriting Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits, and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit
in, or owing to, the Payment Account, and (c) all proceeds and rights in respect
of the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Capital Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Underwriting Agreement" means the Purchase Agreement, dated as of
April 29, 1997, among the Issuer Trust, the Depositor and the Underwriters named
therein, as the same may be amended from time to time.
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"Vice President," when used with respect to the Depositor, means any
duly appointed Executive Vice President.
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The trust established under the Original Trust Agreement and
continued hereby shall be known as "Dime Capital Trust I," as such name may be
modified from time to time by the Administrative Trustees following written
notice to the Holders of Trust Securities and the other Issuer Trustees, in
which name the Issuer Trustees may conduct the business of the Issuer Trust,
make and execute contracts and other instruments on behalf of the Issuer Trust
and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is 1201
Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Holders, the Depositor, the
Property Trustee and the Administrative Trustees. The principal executive office
of the Issuer Trust is 589 Fifth Avenue, New York, New York 10017, Attention:
Secretary.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Issuer Trust as they arise or shall, upon request of any Issuer
Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by
such Issuer Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
SECTION 2.4. Issuance of the Capital Securities.
On April 29, 1997, the Depositor, both on its own behalf and on
behalf of the Issuer Trust pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the execution
and delivery of this Trust Agreement, an Administrative Trustee, on behalf of
the Issuer Trust, shall manually execute in accordance with Sections 5.2, 5.3
and 8.9(a) and the Property Trustee shall authenticate and, subject to Section
5.2(b), deliver to or as directed by the Underwriters or a representative
thereof, Capital Securities Certificates, registered in the names requested by
the Underwriters or a representative thereof, evidencing an aggregate of 200,000
Capital Securities having an aggregate Liquidation Amount of $200,000,000,
against receipt of the aggregate purchase price for such Capital Securities of
$200,000,000 by the Property Trustee.
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SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Issuer Trust, shall
execute in accordance with Sections 5.2, 5.3 and 8.9(a) and the Property Trustee
shall authenticate and deliver to the Depositor, Common Securities Certificates,
registered in the name of the Depositor, evidencing an aggregate of 6,186 Common
Securities having an aggregate Liquidation Amount of $6,186,000, against receipt
of the aggregate purchase price for such Common Securities of $6,186,000 by the
Property Trustee. Contemporaneously therewith, an Administrative Trustee, on
behalf of the Issuer Trust, shall subscribe for and purchase from the Depositor
the Debentures, registered in the name of the Property Trustee on behalf of the
Issuer Trust and having an aggregate principal amount equal to $206,186,000, and
in satisfaction of the purchase price for such Debentures, the Property Trustee,
on behalf of the Issuer Trust, shall deliver to the Depositor the sum of
$206,186,000 (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence
of this Section 2.5).
SECTION 2.6. Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Debentures and (b) to engage in those activities necessary or incidental
thereto. The Depositor hereby reaffirms the appointment of the Delaware Trustee
and appoints the Property Trustee and the Administrative Trustees as trustees of
the Issuer Trust, to have all the rights, powers and duties to the extent set
forth herein, and the respective Issuer Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Issuer Trust and the Holders. The Administrative Trustees shall have all rights,
powers and duties set forth herein and in accordance with applicable law with
respect to accomplishing the purposes of the Issuer Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the trustees of the Issuer Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust Act and for
taking such actions as are required to be taken by a Delaware trustee under the
Delaware Business Trust Act. In the event the Delaware Trustee shall at any time
be required to take any action or perform any duty hereunder with respect to the
Issuer Trust, the Delaware Trustee shall be entitled to all of the same rights
of the Property Trustee listed in Section 8.3.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer Trust
in accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, Article VIII and in accordance with
the following provisions (i) and (ii), the Issuer Trustees shall have the
authority to enter into all transactions and agreements determined by the Issuer
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Issuer Trustees, as the case may be, under this Trust
Agreement, and to perform all acts in furtherance thereof, including, without
limitation, the following:
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(i) As among the Issuer Trustees, each Administrative
Trustee shall have the power and authority to act on behalf of the
Issuer Trust with respect to the following matters:
(A) the issuance and sale of the Trust
Securities;
(B) causing the Issuer Trust to enter into,
and to execute, deliver and perform the Expense Agreement
and the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in connection
with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the
Capital Securities under the Securities Act and under
applicable state securities or blue sky laws and the
qualification of this Trust Agreement as a trust indenture
under the Trust Indenture Act;
(D) assisting in the listing of the Capital
Securities upon such securities exchange or exchanges as
shall be determined by the Depositor, with the registration
of the Capital Securities under the Exchange Act and with
the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(E) assisting in the sending of notices
(other than notices of default) and other information
regarding the Trust Securities and the Debentures to the
Holders in accordance with this Trust Agreement;
(F) the consent to the appointment of a
Paying Agent, authenticating agent and Securities Registrar
in accordance with this Trust Agreement (which consent
shall not be unreasonably withheld);
(G) the execution of the Trust Securities on
behalf of the Issuer Trust in accordance with this Trust
Agreement;
(H) the execution and delivery of closing
certificates, if any, pursuant to the Underwriting
Agreement and application for a taxpayer identification
number for the Issuer Trust;
(I) unless otherwise determined by the
Property Trustee or Holders of at least a Majority in
Liquidation Amount of the Capital Securities or as
otherwise required by the Delaware Business Trust Act or
the Trust Indenture Act, executing on behalf of the Issuer
Trust (either acting alone or together with the other
Administrative Trustee) any documents that the
Administrative Trustees have the power to execute pursuant
to this Trust Agreement;
(J) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation
of the Issuer Trust and the preparation, execution and
filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
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(K) to duly prepare and file all applicable
tax returns and tax information reports that are required
to be filed with respect to the Issuer Trust on behalf of
the Issuer Trust;
(L) to take all action that may be necessary
or appropriate for the preservation and the continuation of
the Issuer Trust's valid existence, rights, franchises and
privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited
liability of the Holders of the Capital Securities or to
enable the Issuer Trust to effect the purposes for which
the trust was created; and
(M) the taking of any action incidental to
the foregoing as the Issuer Trustees may from time to time
determine to be necessary or advisable to give effect to
the terms of this Trust Agreement.
(ii) As among the Issuer Trustees, the Property Trustee
shall have the power, duty and authority to act on behalf of the
Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and
any other payments made in respect of the Debentures and
the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent
of amounts distributable to the Holders in respect of the
Trust Securities;
(E) the exercise of all of the rights, powers
and privileges of a holder of the Debentures;
(F) the sending of notices of default and
other information regarding the Trust Securities and the
Debentures to the Holders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation
of the Issuer Trust and the preparation, execution and
filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) performing the duties of the Property
Trustee set forth in this Trust Agreement;
(J) after an Event of Default (other than
under paragraph (b), (c), (d) or (e) of the definition of
such term if such Event of Default is by or with respect to
the Property
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Trustee) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any
particular Holder); and
(K) any of the duties, powers or the
authority of the Administrative Trustees set forth in
Section 2.7(a)(i)(E) and (M) herein; and in the event of a
conflict between the action of the Administrative Trustees
and the action of the Property Trustee, the action of the
Property Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the Issuer
Trust (or the Issuer Trustees acting on behalf of the Issuer Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Issuer Trustees shall not (i)
acquire any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Holders, except as expressly provided herein, (iii) take any action that
would reasonably be expected to cause the Issuer Trust to become taxable as a
corporation or classified as other than a grantor trust for United States
Federal income tax purposes, (iv) incur any indebtedness for borrowed money or
issue any other debt, or (v) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property. The Administrative
Trustees shall defend all claims and demands of all Persons at any time claiming
any Lien on any of the Trust Property adverse to the interest of the Issuer
Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities,
the Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the
Capital Securities, including any amendments thereto and the taking
of any action necessary or desirable to sell the Capital Securities
in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Capital Securities and the taking of any and all such acts, other
than actions that must be taken by or on behalf of the Issuer Trust,
and advice to the Issuer Trust of actions that must be taken by or on
behalf of the Issuer Trust, and the preparation for execution and
filing of any documents to be executed and filed by the Issuer Trust
or on behalf of the Issuer Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States in connection with the sale of the Capital Securities;
(iii) the preparation for filing by the Issuer Trust and
execution on behalf of the Issuer Trust of an application to the New
York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Capital Securities;
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(iv) the preparation for filing by the Issuer Trust with
the Commission and the execution on behalf of the Issuer Trust of a
registration statement on Form 8-A relating to the registration of
the Capital Securities under Section 12(b) or 12(g) of the Exchange
Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Capital Securities; and
(vi) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Issuer
Trustees are authorized and directed to conduct the affairs of the Issuer Trust
and to operate the Issuer Trust so that the Issuer Trust will not be deemed to
be an "investment company" required to be registered under the Investment
Company Act, and will not be taxable as a corporation or classified as other
than a grantor trust for United States Federal income tax purposes and so that
the Debentures will be treated as indebtedness of the Depositor for United
States Federal income tax purposes; provided, however, that neither the Property
Trustee nor the Delaware Trustee shall be required to take any action pursuant
to this paragraph (d) that is not otherwise required of such Issuer Trustee
pursuant to the terms of this Trust Agreement. In this connection, each
Administrative Trustee, the Property Trustee and the Holders of at least a
Majority in Liquidation Amount of the Common Securities are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust, as
restated, or this Trust Agreement, that such Administrative Trustee, the
Property Trustee or Holders of Common Securities determine in their discretion
to be necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the
Outstanding Capital Securities. In no event shall the Issuer Trustees be liable
to the Issuer Trust or the Holders for any failure to comply with this section
that results from a change in law or regulation or in the interpretation
thereof.
SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
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ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of the
Issuer Trust available for the payment of Distributions.
Distributions shall accumulate from May 6, 1997, and, except in the
event (and to the extent) that the Depositor exercises its right to
defer the payment of interest on the Debentures pursuant to the
Indenture, shall be payable semi-annually in arrears on May 6 and
November 6 of each year, commencing on November 6, 1997. If any date
on which a Distribution is otherwise payable on the Trust Securities
is not a Business Day, then the payment of such Distribution shall be
made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year,
the payment of such Distribution shall be made on the immediately
preceding Business Day, in each case with the same force and effect
as if made on the date on which such payment was originally payable
(each date on which distributions are payable in accordance with this
Section 4.1(a), a "Distribution Date").
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(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of 9.33% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions payable
for any period less than a full Distribution period shall be computed
on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in a period. Distributions
payable for each full Distribution period will be computed by
dividing the rate per annum by two. The amount of Distributions
payable for any period shall include any Additional Amounts in
respect of such period.
(iii) Distributions on the Trust Securities shall be made
by the Property Trustee from the Payment Account and shall be payable
on each Distribution Date only to the extent that the Issuer Trust
has funds then on hand and available in the Payment Account for the
payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be at the close of business on the fifteenth
day (whether or not a Business Day) next preceding the relevant Distribution
Date.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of
the Debentures, the Issuer Trust will be required to redeem a Like Amount of
Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, an
estimate of the Redemption Price together with a statement that it is
an estimate and that the actual Redemption Price will be calculated
on the third Business Day prior to the Redemption Date (and if an
estimate is provided, a further notice shall be sent of the actual
Redemption Price on the date that such Redemption Price is
calculated);
(iii) the CUSIP number or CUSIP numbers of the Capital
Securities affected (if applicable);
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the aggregate Liquidation
Amount of the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accumulate on and after
said date, except as provided in Section 4.2(d) below; and
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(vi) the place or places where the Trust Securities are to
be surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Property Trustee shall
indicate the "CUSIP" numbers of the Trust Securities in notices of redemption
and related materials as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Trust Securities or as contained in any notice of
redemption and related materials.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Issuer Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Capital Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Capital Securities, irrevocably deposit with the Clearing
Agency for such Book-Entry Capital Securities, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Capital Securities. With respect to Capital
Securities that are not Book-Entry Capital Securities, the Property Trustee,
subject to Section 4.2(c), will irrevocably deposit with the Paying Agent, to
the extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Capital Securities upon surrender
of their Capital Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust Securities on
the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Holders holding Trust Securities so called
for redemption will cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the Trust Securities
on or prior to the Redemption Date, but without interest, and such Securities
will cease to be outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a Business
Day (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 any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee Agreement, Distributions on such Trust
Securities will continue to accumulate, as set forth in Section 4.1, from the
Redemption Date originally established by the Issuer Trust for such Trust
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.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall
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be allocated pro rata to the Common Securities and the Capital Securities based
upon the relative Liquidation Amounts of such classes. The particular Capital
Securities to be redeemed shall be selected on a pro rata basis based upon their
respective Liquidation Amounts (or such other method as the Property Trustee
shall deem fair and appropriate) not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Capital Securities not
previously called for redemption. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Capital Securities selected for
redemption and, in the case of any Capital Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Capital Securities shall relate, in the case of
any Capital Securities redeemed or to be redeemed only in part, to the portion
of the aggregate Liquidation Amount of Capital Securities that has been or is to
be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on,
the Redemption Price of, and the Liquidation Distribution in respect of the
Trust Securities, as applicable, shall be made, subject to Section 4.2(e), pro
rata among the Common Securities and the Capital Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of Default
resulting from a Debenture Event of Default specified in Section 5.1(1) or
5.1(2) of the Indenture shall have occurred and be continuing, no payment of any
Distribution (including any Additional Amounts) on, Redemption Price of, or
Liquidation Distribution in respect of any Common Security, and no other payment
on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including any Additional Amounts) on all Outstanding
Capital 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 Outstanding Capital 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 Capital Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption Price of,
the Capital Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holders of the Common Securities shall
have no right to act with respect to any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with respect to the
Capital Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not on behalf of the Holders of the Common Securities, and only the Holders of
the Capital Securities will have the right to direct the Property Trustee to act
on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in
respect of the Capital Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Capital Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds. Payments in respect of the Common
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Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Holders of the Common Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense, and file all United States Federal, state and local
tax and information returns and reports required to be filed by or in respect of
the Issuer Trust. In this regard, the Administrative Trustees shall (a) prepare
and file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Issuer Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall, upon the written direction of any Administrative Trustee,
promptly pay any taxes, duties or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Issuer Trust by the United States
or any other taxing authority, which were included in such Additional Sums.
SECTION 4.7. Payments under Indenture or Pursuant to Direct
Actions.
Any amount payable hereunder to any Holder of Capital Securities (or
any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (or Owner) has directly received pursuant to
Section 5.8 of the Indenture or Section 5.13 of this Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
SECTION 5.2. The Trust Securities Certificates.
(a) The Capital Securities Certificates shall be issued in minimum
denominations of $1,000 Liquidation Amount and integral multiples of $1,000 in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $1,000 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Issuer Trust by
manual signature of at
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least one Administrative Trustee and authenticated by the Property Trustee by
manual signature of an authorized officer thereof. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Issuer
Trust or the Property Trustee, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the delivery of such
Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates
shall be issued in the form of one or more Book-Entry Capital Securities
Certificates registered in the name of DTC, as Clearing Agency, or its nominee
and deposited with DTC or the Securities Registrar as custodian for DTC for
credit by DTC to the respective accounts of the Owners thereof (or such other
accounts as they may direct).
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates.
At the Time of Delivery, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust, and the
Property Trustee shall cause such Trust Securities Certificates to be
authenticated, delivered to or upon the written order of the Depositor and
executed by one officer thereof, without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Book-Entry Capital Securities.
(a) Each Book-Entry Capital Securities Certificate issued under this
Trust Agreement shall be registered in the name of the Clearing Agency or a
nominee thereof and delivered to such Clearing Agency or a nominee thereof or
custodian therefor, and each such Book-Entry Capital Securities Certificate
shall constitute a single Capital Securities Certificate for all purposes of
this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no
Book-Entry Capital Securities Certificate may be exchanged in whole or in part
for Capital Securities Certificates registered, and no transfer of a Book-Entry
Capital Securities Certificate in whole or in part may be registered, in the
name of any Person other than the Clearing Agency for such Book-Entry Capital
Securities Certificates or a nominee thereof unless (i) the Clearing Agency
advises the Issuer Trust in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Capital Securities Certificates, and a qualified successor shall not
have been appointed, or the Clearing Agency ceases to be a clearing agency
registered under the Exchange Act at a time when it is required to be so
registered to act as such clearing agent, (ii) an Administrative Trustee at its
option determines that a Book-Entry Capital Securities Certificate shall be so
exchangeable, or (iii) a Debenture Event of Default has occurred and is
continuing. Upon the occurrence of any event specified in clause (i), (ii) or
(iii) above, an Administrative Trustee shall notify the Clearing Agency and the
Property Trustee and instruct the Clearing Agency to notify all Owners of Book-
Entry Capital Securities and the Delaware Trustee and the
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Administrative Trustees of the occurrence of such event and of the availability
of the Definitive Capital Securities Certificates to Owners of such class or
classes, as applicable, requesting the same.
(c) If any Book-Entry Capital Securities Certificate is to be
exchanged for other Capital Securities Certificates or cancelled in part, or if
any other Capital Securities Certificate is to be exchanged in whole or in part
for Book-Entry Capital Securities represented by a Book-Entry Capital Securities
Certificate, then either (i) such Book-Entry Capital Securities Certificate
shall be so surrendered for exchange or cancellation as provided in this Article
V or (ii) the aggregate Liquidation Amount represented by such Book-Entry
Capital Securities Certificate shall be reduced, subject to Section 5.2, or
increased by an amount equal to the Liquidation Amount represented by that
portion of the Book-Entry Capital Securities Certificate to be so exchanged or
cancelled, or equal to the Liquidation Amount represented by such other Capital
Securities Certificates to be so exchanged for Book-Entry Capital Securities
represented thereby, as the case may be, by means of an appropriate adjustment
made on the records of the Securities Registrar, whereupon the Property Trustee,
in accordance with the Applicable Procedures, shall instruct the Clearing Agency
or its authorized representative to make a corresponding adjustment to its
records. Upon surrender to the Administrative Trustees or the Securities
Registrar of the Book-Entry Capital Securities Certificate or Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute and the Property
Trustee shall authenticate the Definitive Capital Securities Certificates in
accordance with the instructions of the Clearing Agency. None of the Securities
Registrar or the Issuer Trustees shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Capital
Securities Certificates, the Issuer Trustees shall recognize the Holders of the
Definitive Capital Securities Certificates as Holders. The Definitive Capital
Securities Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by the execution thereof by the Administrative Trustees
or any one of them.
(d) Every Capital Securities Certificate executed and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Book-Entry
Capital Securities Certificate or any portion thereof, whether pursuant to this
Article V or Article IV or otherwise, shall be executed and delivered in the
form of, and shall be, a Book-Entry Capital Securities Certificate, unless such
Capital Securities Certificate is registered in the name of a Person other than
the Clearing Agency for such Book-Entry Capital Securities Certificate or a
nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a
Book-Entry Capital Securities Certificate, shall be the Holder of such
Book-Entry Capital Securities Certificate for all purposes under this Trust
Agreement and the Book-Entry Capital Securities Certificate, and Owners with
respect to a Book-Entry Capital Securities Certificate shall hold such interests
pursuant to the Applicable Procedures. The Securities Registrar and the Issuer
Trustees shall be entitled to deal with the Clearing Agency for all purposes of
this Trust Agreement relating to the Book-Entry Capital Securities Certificates
(including the payment of the Liquidation Amount of and Distributions on the
Book-Entry Capital Securities represented thereby and the giving of instructions
or directions by Owners of Book-Entry Capital Securities represented thereby) as
the sole Holder of the Book-Entry Capital Securities represented thereby and
shall have no obligations to the Owners thereof. None of the Issuer Trustees nor
the Securities Registrar shall have any liability in respect of any transfers
effected by the Clearing Agency.
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The rights of the Owners of the Book-Entry Capital Securities shall
be exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Capital Securities
Certificates are issued pursuant to Section 5.4(b), the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit payments on the Capital Securities to such Clearing Agency
Participants, and none of the Depositor or the Issuer Trustees shall have any
responsibility or obligation with respect thereto.
SECTION 5.5. Registration of Transfer and Exchange of Capital
Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.9, a register or registers for
the purpose of registering Trust Securities Certificates and transfers and
exchanges of Trust Securities Certificates (the "Securities Register") in which
the registrar and transfer agent with respect to the Trust Securities (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Capital Securities Certificates
and Common Securities Certificates (subject to Section 5.11 in the case of the
Common Securities Certificates) and registration of transfers and exchanges of
Capital Securities Certificates as herein provided. The Person acting as the
Property Trustee shall at all times also be the Securities Registrar.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrative Trustees or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Capital
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required, (i) to issue,
register the transfer of or exchange any Capital Security during a period
beginning at the opening of business 15 days before the day of selection for
redemption of such Capital Securities pursuant to Article IV and ending at the
close of business on the day of mailing of the notice of redemption, or (ii) to
register the transfer of or exchange any Capital Security so selected for
redemption in whole or in part, except, in the case of any such Capital Security
to be redeemed in part, any portion thereof not to be redeemed.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or its attorney duly authorized
in writing. Each Capital Securities Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Property Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Capital Securities
Certificates.
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(b) Notwithstanding any other provision of this Trust Agreement,
transfers and exchanges of Capital Securities Certificates and beneficial
interests in a Book-Entry Capital Securities Certificate of the kinds specified
in this Section 5.5(b) shall be made only in accordance with this Section
5.5(b).
(i) Non-Book-Entry Capital Securities Certificate to
------------------------------------------------
Book-Entry Capital Securities Certificate. If the Holder of a Capital
-----------------------------------------
Securities Certificate (other than a Book-Entry Capital Securities
Certificate) wishes at any time to transfer all or any portion of
such Capital Securities Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in a Book-Entry
Capital Securities Certificate, such transfer may be effected only in
accordance with the provisions of this Clause (b)(i) and subject to
the Applicable Procedures. Upon receipt by the Securities Registrar
of (A) such Capital Securities Certificate as provided in Section
5.5(a) and instructions satisfactory to the Securities Registrar
directing that a beneficial interest in the Book-Entry Capital
Securities Certificate of a specified number of Capital Securities
not greater than the number of Capital Securities represented by such
Capital Securities Certificate be credited to a specified Clearing
Agency Participant's account, then the Securities Registrar shall
cancel such Capital Securities Certificate (and issue a new Capital
Securities Certificate in respect of any untransferred portion
thereof) as provided in Section 5.5(a) and increase the aggregate
Liquidation Amount of the Book-Entry Capital Securities Certificate
by the Liquidation Amount represented by such Capital Securities so
transferred as provided in Section 5.4(c).
(ii) Non-Book-Entry Capital Securities Certificate to
------------------------------------------------
Non-Book-Entry Capital Securities Certificate. A Capital Securities
---------------------------------------------
Certificate that is not a Book-Entry Capital Securities Certificate
may be transferred, in whole or in part, to a Person who takes
delivery in the form of another Capital Securities Certificate that
is not a Book-Entry Capital Securities Certificate as provided in
Section 5.5(a).
(iii) Exchanges between Book-Entry Capital Securities
-----------------------------------------------
Certificate and Non-Book-Entry Capital Securities Certificate. A
-------------------------------------------------------------
beneficial interest in a Book-Entry Capital Securities Certificate
may be exchanged for a Capital Securities Certificate that is not a
Book-Entry Capital Securities Certificate as provided in Section 5.4.
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate, and (b) there shall be delivered to the Securities
Registrar and the Issuer Trustees such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the Issuer Trust
shall execute and the Property Trustee shall authenticate and make available for
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Trust Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section 5.6, the Administrative Trustees or
the Securities Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued pursuant to this
Section shall constitute conclusive evidence of an undivided beneficial interest
in the assets of the Issuer Trust corresponding to
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that evidenced by the lost, stolen or destroyed Trust Securities Certificate, as
if originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
none of the Issuer Trustees and the Securities Registrar shall be bound by any
notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee, the Delaware Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrative Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Capital Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates The Chase
Manhattan Bank, 450 West 33rd Street, 15th Floor, New York, New York 10001,
Attention: Corporate Trust Administration, as its office and agency for such
purposes. The Property Trustee shall give prompt written notice to the
Depositor, the Administrative Trustees and to the Holders of any change in the
location of the Securities Register or any such office or agency.
SECTION 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee (if the Paying Agent is not the Property Trustee) and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account solely for the purpose of making the Distributions referred
to above. The Administrative Trustees may revoke such power and remove the
Paying Agent in their sole discretion. The Paying Agent shall initially be the
Property Trustee. Any Person acting as Paying Agent shall be permitted to resign
as Paying Agent upon 30 days' written notice to the Administrative Trustees and,
if the Paying Agent is not the Property Trustee, the Property Trustee. If the
Property Trustee shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Administrative Trustees
shall appoint a successor (which shall be a bank or trust company) to act as
Paying Agent. Such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Issuer Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Holders in trust for the benefit of the Holders entitled
thereto until such sums shall be paid to such Holders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying
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Agent shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Property
Trustee in its role as Paying Agent, for so long as the Property Trustee shall
act as Paying Agent and, to the extent applicable, to any additional Paying
Agent appointed hereunder. Any reference in this Trust Agreement to the Paying
Agent shall include any such additional Paying Agent unless the context requires
otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire, and thereafter
shall retain, beneficial and record ownership of the Common Securities. The
Depositor may not transfer the Common Securities except (i) in connection with a
consolidation or merger of the Depositor into another corporation, or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section 8.1 of the
Indenture, or (ii) to an Affiliate of the Depositor in compliance with
applicable law (including the Securities Act and applicable state securities and
blue sky laws). To the fullest extent permitted by law, any attempted transfer
of the Common Securities other than as set forth in the next preceding sentence
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating substantially
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF
THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT
OF THE EXPENSE AGREEMENT REFERRED TO THEREIN."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Capital Securities are
represented by a Book-Entry Capital Securities Certificate, the Issuer Trustees
shall give all such notices and communications specified herein to be given to
the Clearing Agency and shall have no obligations to the Owners.
SECTION 5.13. Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section 2.9,
and the Holders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Issuer Trust conferred by
their Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Issuer Trust except as described
below. The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Holders against payment of the purchase price therefor will be fully paid and
nonassessable by the Issuer Trust. The Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Debentures fail to
declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Capital
Securities then Outstanding shall
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have the right to make such declaration by a notice in writing to the Property
Trustee, the Depositor and the Debenture Trustee.
At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, by written notice to the Property Trustee, the Depositor and
the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest on
all of the Debentures,
(B) any accrued Additional Interest on all of
the Debentures,
(C) the principal of (and premium, if any,
on) any Debentures that have become due otherwise than by
such declaration of acceleration and interest and
Additional Interest thereon at the rate borne by the
Debentures, and
(D) all sums paid or advanced by the
Debenture Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the
Debenture Trustee and the Property Trustee, their agents
and counsel and all other amounts due to the Debenture
Trustee pursuant to Section 6.7 of the Indenture or to the
Property Trustee under Section 8.6 hereof; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures that
has become due solely by such acceleration, have been cured or waived
as provided in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision that under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of any part of
the Capital Securities a record date shall be established for determining
Holders of Outstanding Capital Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that, unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is 90 days after
such record date,
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such notice of declaration of acceleration, or rescission and annulment, as the
case may be, shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written notice
that has been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions of
this Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Capital Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of any
amounts payable in respect of Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of such
Holder (a "Direct Action"). Except as set forth in Section 5.13(b) and this
Section 5.13(c), the Holders of Capital Securities shall have no right to
exercise directly any right or remedy available to the holders of, or in respect
of, the Debentures.
(d) Except as otherwise provided in clauses (a), (b) and (c) of this
Section 5.13, the Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Trust Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Issuer Trust, the Property Trustee shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or execute any trust or power conferred on the Property
Trustee with respect to the Debentures, (ii) waive any past default that may be
waived under Section 5.13 of the Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable, or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the
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prior approval of the Holders of at least a Majority in Liquidation Amount of
the Capital Securities, provided, however, that where a consent under the
Indenture would require the consent of each Holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Capital Securities. The Property Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Capital Securities, except by a subsequent vote of the Holders of
the Capital Securities. The Property Trustee shall notify all Holders of the
Capital Securities of any notice of default received with respect to the
Debentures. In addition to obtaining the foregoing approvals of the Holders of
the Capital Securities, prior to taking any of the foregoing actions, the
Administrative Trustees, at the request of the Property Trustee shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action shall not cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Issuer Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Capital Securities, whether by way of amendment to this Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Issuer Trust, other than pursuant to the terms of this Trust Agreement, then
the Holders of Outstanding Capital Securities as a class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders of the Capital Securities,
stating the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.8 to each Holder of Capital Securities,
at such Holder's registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Holders of the Capital Securities.
No annual meeting of Holders is required to be held. The
Administrative Trustees, however, shall call a meeting of the Holders of the
Capital Securities to vote on any matter upon the written request of the Holders
of at least 25% in aggregate Liquidation Amount of the Outstanding Capital
Securities and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of the Holders of the Capital
Securities to vote on any matters as to which such Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the
Capital Securities, present in person or by proxy, shall constitute a quorum at
any meeting of the Holders of the Capital Securities.
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If a quorum is present at a meeting, an affirmative vote by the
Holders present, in person or by proxy, holding Capital Securities representing
at least a Majority in aggregate Liquidation Amount of the Capital Securities
held by the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of the Capital Securities, unless this
Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $1,000 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Administrative Trustees, or with such
other officer or agent of the Issuer Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Only Holders of record shall be entitled to vote. When Trust Securities are held
jointly by several persons, any one of them may vote at any meeting in person or
by proxy in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken
without a meeting if Holders holding at least a Majority in Liquidation Amount
of all Capital Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any other provision of this
Trust Agreement) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees or Property Trustee may from time to
time fix a date, not more than 90 days prior to the date of any meeting of
Holders or the payment of a distribution or other action, as the case may be, as
a record date for the determination of the identity of the Holders of record for
such purposes.
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SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to an Administrative Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Trust
Agreement and (subject to Section 8.1) conclusive in favor of the Issuer
Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that any Issuer Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Trust Security shall bind every future
Holder of the same Trust Security and the Holder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Issuer Trustees or the Issuer Trust in reliance thereon, whether or not notation
of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders or the Issuer Trustees
with respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such Holder or
Issuer Trustee under this Article VI, then the determination of such matter by
the Property Trustee shall be conclusive with respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to enforce its rights under the
Guarantee Agreement without first instituting a legal proceeding against the
Guarantee Trustee (as defined in the Guarantee Agreement), the Issuer Trust, any
Issuer Trustee or any Person or entity.
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SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Issuer Trust shall be open to inspection by
Holders during normal business hours for any purpose reasonably related to such
Holder's interest as a Holder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee.
The Property Trustee represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a banking corporation, duly organized,
validly existing and in good standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally binding
agreement of the Property Trustee enforceable against the Property Trustee in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance of this Trust Agreement
has been duly authorized by all necessary corporate or other action on the part
of the Property Trustee and does not require any approval of stockholders of the
Property Trustee and such execution, delivery and performance will not (i)
violate the Charter or By-laws of the Property Trustee, (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any properties
included in the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument to which
the Property Trustee is a party or by which it is bound, or (iii) violate any
law, governmental rule or regulation of the State of New York governing the
banking, trust or general powers of the Property Trustee or any order, judgment
or decree applicable to the Property Trustee;
(e) neither the authorization, execution or delivery by the Property
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing law of
the State of New York governing the banking, trust or general powers of the
Property Trustee; and
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(f) there are no proceedings pending or, to the best of the Property
Trustee's knowledge, threatened against or affecting the Property Trustee in any
court or before any governmental authority, agency or arbitration board or
tribunal that, individually or in the aggregate, would materially and adversely
affect the Issuer Trust or would question the right, power and authority of the
Property Trustee to enter into or perform its obligations as one of the Issuer
Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of the Delaware
Trustee.
The Delaware Trustee hereby represents and warrants for the benefit
of the Depositor and the Holders that:
(a) the Delaware Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the State
of Delaware.
(b) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally binding
agreement of the Delaware Trustee enforceable against the Delaware Trustee in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance of this Trust Agreement
has been duly authorized by all necessary corporate or other action on the part
of the Delaware Trustee and does not require any approval of stockholders of the
Delaware Trustee and such execution, delivery and performance will not (i)
violate the Charter or By-laws of the Delaware Trustee, (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any properties
included in the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument to which
the Delaware Trustee is a party or by which it is bound, or (iii) violate any
law, governmental rule or regulation of the State of Delaware governing the
banking, trust or general powers of the Delaware Trustee or any order, judgment
or decree applicable to the Delaware Trustee;
(e) neither the authorization, execution or delivery by the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Delaware Trustee contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing law of
the State of Delaware governing the banking, trust or general powers of the
Delaware Trustee; and
(f) there are no proceedings pending or, to the best of the Delaware
Trustee's knowledge, threatened against or affecting the Delaware Trustee in any
court or before any governmental authority, agency or arbitration board or
tribunal that, individually or in the aggregate, would materially and adversely
affect the Issuer Trust or would question the right, power and authority of the
Delaware Trustee to enter into or perform its obligations as one of the Issuer
Trustees under this Trust Agreement.
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SECTION 7.3. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Time of Delivery
on behalf of the Issuer Trust have been duly authorized and will have been duly
and validly executed, issued and delivered by the Issuer Trustees pursuant to
the terms and provisions of, and in accordance with the requirements of, this
Trust Agreement and the Holders will be, as of each such date, entitled to the
benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under
the laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the Property Trustee
or the Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII.
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require any of the Issuer Trustees to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Issuer Trustees shall be subject to the provisions of this
Section 8.1. Nothing in this Trust Agreement shall be construed to release an
Administrative Trustee from liability for his or her own negligent action, his
or her own negligent failure to act, or his or her own willful misconduct. To
the extent that, at law or in equity, an Issuer Trustee has duties and
liabilities relating to the Issuer Trust or to the Holders, such Issuer Trustee
shall not be liable to the Issuer Trust or to any Holder for such Issuer
Trustee's good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of the Issuer Trustees otherwise existing at law or in equity,
are agreed by the Depositor and the Holders to replace such other duties and
liabilities of the Issuer Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Issuer Trustees are not
personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect
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of any Trust Security. This Section 8.1(b) does not limit the liability of the
Issuer Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Agreement (including pursuant to Section 10.10), and no implied
covenants shall be read into this Trust Agreement against the Property Trustee.
If an Event of Default has occurred (that has not been cured or waived pursuant
to Section 5.13), the Property Trustee shall exercise such of the rights and
powers vested in it by this Trust Agreement, and use the same degree of care and
skill in its exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee or the Delaware Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the
Property Trustee shall be determined solely by the express
provisions of this Trust Agreement (including pursuant to
Section 10.10), and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part
of the Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee
and conforming to the requirements of this Trust Agreement;
but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act are
specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they conform
to the requirements of this Trust Agreement.
(ii) such Issuer Trustee shall not be liable for any error
of judgment made in good faith by an authorized officer of such
Issuer Trustee, unless it shall be proved that such Issuer Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a Majority
in Liquidation Amount of the Capital Securities relating to the time,
method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property in a
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similar manner as the Property Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement
and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Depositor; and money held by the Property Trustee need not
be segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to
Section 3.1 and except to the extent otherwise required by law;
(vi) such Issuer Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement,
nor shall such Issuer Trustee be liable for the default or misconduct
of any other Issuer Trustee or the Depositor; and
(vii) no provision of this Trust Agreement shall require
such Issuer Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if such
Issuer Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it
under the terms of this Trust Agreement or adequate indemnity against
such risk or liability is not reasonably assured to it.
(e) The Administrative Trustees shall not be responsible for
monitoring the compliance by the other Issuer Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall either
Administrative Trustee be liable for the default or misconduct of any other
Administrative Trustee, the other Issuer Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such Event of Default to the Holders, the Administrative Trustees and the
Depositor, unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustees shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such exercise to the Holders, unless such exercise shall have been revoked.
The Property Trustee shall not be deemed to have knowledge of any
Event of Default unless the Property Trustee shall have received written notice
or an officer of the Property Trustee charged with the administration of this
Trust Agreement shall have obtained actual knowledge of such Event of Default.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
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(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein, or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Holders of the Capital Securities are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a notice to the
Depositor requesting the Depositor's opinion as to the course of action to be
taken, and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Holders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(d) any direction or act of an Administrative Trustee contemplated by
this Trust Agreement shall be sufficiently evidenced by a certificate executed
by such Administrative Trustee and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may
be counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction; provided that, nothing
contained in this Section 8.3(g) shall be taken to relieve the Property
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Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, and the Property Trustee shall not be responsible for any
negligence or misconduct on the part of, or for the supervision of, any such
agent or attorney appointed by the Property Trustee hereunder without due care
on the part of the Property Trustee;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in acting in
accordance with such instructions;
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Trust Agreement;
(l) without prejudice to any other rights available to the Property
Trustee under applicable law, when the Property Trustee incurs expenses or
renders services in connection with a Bankruptcy Event, such expenses (including
the reasonable fees and expenses of its counsel) and the compensation for such
services are intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors' rights generally; and
(m) any action taken hereunder by the Property Trustee or its agents
shall bind the Issuer Trust and the Holders of the Trust Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be required to
inquire as to the authority of the Property Trustee to so act or its compliance
with any of the terms and provisions of this Trust Agreement, both of which
shall be conclusively evidenced by the Property Trustee's or its agent's taking
such action.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on any Issuer Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which such Person shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to any Issuer Trustee shall be construed
to be a duty.
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SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Issuer Trust and the
Depositor, and the Issuer Trustees do not assume any responsibility for their
correctness. The Issuer Trustees shall not be accountable for the use or
application by the Depositor of the proceeds of the Debentures.
The Property Trustee may conclusively assume that any funds held by
it hereunder are legally available unless an officer of the Property Trustee
assigned to its Corporate Trust Administration department shall have received
written notice from the Depositor, any Holder or any other Issuer Trustee that
such funds are not legally available.
SECTION 8.5. May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the
Issuer Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, and except as
provided in the definition of the term "Outstanding" in Article I, may otherwise
deal with the Issuer Trust with the same rights it would have if it were not an
Issuer Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such compensation
for all services rendered by them hereunder as may be agreed by the Depositor
and the Issuer Trustees from time to time (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Issuer Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Issuer Trustees in accordance with any
provision of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of their agents and counsel), except any such
expense, disbursement or advance as may be attributable to their negligence, bad
faith or wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Issuer Trustee, (ii) any Affiliate of any Issuer
Trustee, (iii) any officer, director, shareholder, employee, representative or
agent of any Issuer Trustee, and (iv) any employee or agent of the Issuer Trust
(referred to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Issuer Trust or any act or omission performed or
omitted by such Indemnified Person on behalf of the Issuer Trust, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of negligence, bad
faith or wilful misconduct with respect to such acts or omissions.
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The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement and the removal or resignation of any Issuer Trustee.
No Issuer Trustee may claim any Lien on any Trust Property as a result of
any amount due pursuant to this Section 8.6.
Section 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is a
national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and that has combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article. At the time of
appointment, the Property Trustee must have securities rated in one of the three
highest rating categories by a nationally recognized statistical rating
organization.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware, or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law and that shall
act through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request
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of the Administrative Trustees, the Depositor shall for such purpose join with
the Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States, or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity. In case an Event of Default under the Indenture
shall have occurred and be continuing, the Property Trustee alone shall have the
power to make such appointment.
Should any written instrument from the Depositor be required by any co-
trustee or separate trustee so appointed for more fully confirming to such co-
trustee or separate trustee such property, title, right, or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The Trust Securities shall be executed by one or more Administrative
Trustees, and the Trust Securities shall be delivered by the Property Trustee,
and all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or required to
be deposited or pledged with, the Property Trustee specified hereunder shall be
exercised solely by the Property Trustee and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such co-
trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigning or
removed may be appointed in the manner provided in this Section.
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(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a co-
trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Issuer
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within 30 days after the giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Trust, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by Act of the Holders of Common
Securities. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Capital Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Holders of Common Securities at any time. In no event will the
Holders of the Capital Securities have a right to vote to appoint, remove or
replace the Administrative Trustees.
If any Issuer Trustee shall resign, be removed or become incapable of
acting as Issuer Trustee, or if a vacancy shall occur in the office of any
Issuer Trustee for any reason, at a time when no Debenture Event of Default
shall have occurred and be continuing, the Holders of Common Securities, by Act
of the Holders of Common Securities, shall promptly appoint a successor Issuer
Trustee or Issuer Trustees, and the retiring Issuer Trustee shall comply with
the applicable requirements of Section 8.11. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing to
act as the Property Trustee or the Delaware Trustee, as the case may be, at a
time when a Debenture Event of Default shall have occurred and be continuing,
the Holders of Capital Securities, by Act of the Holders of a majority in
Liquidation Amount of the Capital Securities then Outstanding shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor Trustee
shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture Event of Default shall have
occurred and be continuing, the Holders of Common Securities by Act of the
Holders of Common Securities shall promptly appoint a successor Administrative
Trustee or Administrative Trustees and such successor Administrative Trustee or
Trustees shall comply with the applicable requirements of Section 8.11. If no
successor Relevant Trustee shall have been so appointed by the Holders of Common
Securities or the
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Holders of Capital Securities and accepted appointment in the manner required by
Section 8.11, any Holder who has been a Holder of Trust Securities for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The Property Trustee shall give notice of each resignation and each removal
of an Issuer Trustee and each appointment of a successor Issuer Trustee to all
Holders in the manner provided in Section 10.8 and shall give notice to the
Depositor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Issuer Trustee such
successor Issuer Trustee so appointed shall execute, acknowledge and deliver to
the Issuer Trust and to the retiring Issuer Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Issuer
Trustee shall become effective and such successor Issuer Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Issuer Trustee; but, on the request of
the Depositor or the successor Issuer Trustee, such retiring Issuer Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Issuer Trustee all the rights, powers and trusts
of the retiring Issuer Trustee and if the Property Trustee is the resigning
Issuer Trustee shall duly assign, transfer and deliver to the successor Issuer
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee with respect to
the Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Issuer Trust, and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
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money held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Issuer Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural Person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person, succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided that such Person shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against Depositor or
Issuer Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Capital
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
Section 814. Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel and any other amounts due to the Property Trustee or the Delaware
Trustee pursuant to Section 8.6) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 8.15. Reports by Property Trustee.
(a) The Property Trustee shall transmit to Holders such reports concerning
the Property Trustee and its actions under this Trust Agreement as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Property Trustee shall, within sixty days after each May 15 following
the date of this Trust Agreement, deliver to Holders a brief report, dated as
of such May 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each national stock exchange, the
Nasdaq National Market or such other interdealer quotation system or self-
regulatory organization upon which the Trust Securities are listed or traded,
with the Commission and with the Depositor. The Depositor will promptly notify
the Property Trustee of any such listing or trading.
Section 8.16. Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees shall provide to the
Property Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314(a) of the Trust Indenture Act in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act. The compliance
certificate furnished by the Depositor shall be signed by the principal
executive, financial or accounting officer of the Depositor. The Depositor and
the Administrative Trustees shall annually file with the Property Trustee a
certificate specifying whether such Person is in compliance with all of the
terms and covenants applicable to such Person hereunder.
Section 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Trust Agreement that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act shall be given in the form of an Officers' Certificate.
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Section 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be four, provided that the Property
Trustee and the Delaware Trustee may be the same Person.
(b) If an Issuer Trustee ceases to hold office for any reason, a vacancy
shall occur. The vacancy shall be filled with an Issuer Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of an Issuer Trustee shall not operate to
annul, dissolve or terminate the Issuer Trust.
Section 8.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Issuer Trust or the
names of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement.
Section 8.20. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be Gene C. Brooks, an
individual, and D. James Daras, an individual, and their successors shall be
appointed by the Holders of a Majority in Liquidation Amount of the Common
Securities, and they may resign or be removed by the Holders of a Majority in
Liquidation Amount of the Common Securities at any time. Upon any resignation or
removal, the Holders of the Common Securities shall appoint a successor
Administrative Trustee. Each successor Administrative Trustee shall sign an
agreement agreeing to comply with the terms of this Trust Agreement. If at any
time there is no Administrative Trustee, the Property Trustee or any Holder who
has been a Holder of Trust Securities for at least six months may petition any
court of competent jurisdiction for the appointment of one or more
Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with this Section 8.20, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrative Trustee who is a natural person dies or
becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by the
unanimous acts of the remaining Administrative Trustees, if there were at least
two of them prior
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to such vacancy, and by the Depositor, if there were not two such Administrative
Trustees immediately prior to such vacancy (with the successor being a Person
who satisfies the eligibility requirement for Administrative Trustees set forth
in Section 8.7).
ARTICLE IX.
Termination, Liquidation and Merger
Section 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Issuer Trust shall automatically terminate
on April 4, 2052 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
Section 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from all of the Holders
of the Common Securities at any time to terminate the Issuer Trust and to
distribute the Debentures to Holders in exchange for the Capital Securities
(which direction is optional and wholly within the discretion of the Holders of
the Common Securities);
(c) the redemption of all of the Capital Securities in connection with the
redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a court of
competent jurisdiction.
Section 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees and
the Issuer Trust created and continued hereby shall terminate upon the latest to
occur of the following: (a) the distribution by the Property Trustee to Holders
of all amounts required to be distributed hereunder upon the liquidation of the
Issuer Trust pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2; (b) the payment of any expenses owed by the
Issuer Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Issuer Trust or the Holders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Issuer Trustees as expeditiously as the Issuer Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer
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Trust as provided by applicable law, to each Holder a Like Amount of Debentures,
subject to Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid mailed not less than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All such notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the procedures by which
Holders may exchange Trust Securities Certificates for Debentures, or if
Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Issuer Trust and distribution of the Debentures to Holders,
the Administrative Trustees, either themselves acting as exchange agent or
through the appointment of the Property Trustee as a separate exchange agent,
shall establish a record date for such distribution (which shall be not more
than 30 days prior to the Liquidation Date) and, establish such procedures as
they shall deem appropriate to effect the distribution of Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such Certificates to the
exchange agent for exchange, (iii) the Depositor shall use its best efforts to
have the Debentures listed on the national stock exchange, the New York Stock
Exchange or on such other exchange, interdealer quotation system or self-
regulatory organization as the Capital Securities are then listed, if any, (iv)
any Trust Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures bearing accrued and unpaid interest in
an amount equal to the accumulated and unpaid Distributions on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to Holders of Trust Securities Certificates with respect to such
Debentures) and (v) all rights of Holders holding Trust Securities will cease,
except the right of such Holders to receive Debentures upon surrender of Trust
Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, or if an Early
Termination Event specified in Section 9.2(c) occurs, the Trust Property shall
be liquidated, and the Issuer Trust shall be dissolved, wound-up or terminated,
by the Property Trustee in such manner as the Property Trustee determines. In
such event, on the date of the dissolution, winding-up or other termination of
the Issuer Trust, Holders will be entitled to receive out of the assets of the
Issuer Trust available for distribution to Holders, after satisfaction of
liabilities to creditors of the Issuer Trust as provided by
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applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such dissolution,
winding up or termination, the Liquidation Distribution can be paid only in part
because the Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust Securities shall
be paid on a pro rata basis (based upon Liquidation Amounts). The Holders of the
Common Securities will be entitled to receive Liquidation Distributions upon any
such dissolution, winding-up or termination pro rata (determined as aforesaid)
with Holders of Capital Securities, except that, if a Debenture Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture has occurred and is
continuing, the Capital Securities shall have a priority over the Common
Securities as provided in Section 4.3.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except pursuant to this Section 9.5.
At the request of the Holders of the Common Securities, with the consent of the
Administrative Trustees, the Issuer Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Issuer Trust with respect to the Capital
Securities, or (b) substitutes for the Capital Securities other securities
having substantially the same terms as the Capital Securities (the "Successor
Securities") so long as the Successor Securities have the same priority as the
Capital Securities with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) a trustee of such successor entity possessing the
same powers and duties as the Property Trustee is appointed to hold the
Debentures, (iii) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization which assigns ratings to the Capital Securities,
(iv) the Successor Securities are listed, or any Successor Securities will be
listed upon notice of issuance, on the national securities exchange, the Nasdaq
National Market or on such other exchange, interdealer quotation system or self-
regulatory organization as the Capital Securities are then listed, if any, (v)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Capital Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Capital Securities (including any Successor Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Issuer Trust nor such successor
entity will be required to register as an "investment company" under the
Investment Company Act, and (viii) the Depositor or its permitted transferee
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 Agreement. Notwithstanding the foregoing,
the Issuer Trust shall not, except with the consent of Holders of all of the
Capital 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,
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<PAGE>
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Issuer Trust or the successor entity to be taxable as a corporation or
classified as other than a grantor trust for United States Federal income tax
purposes.
ARTICLE X.
Miscellaneous Provisions
Section 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of any Person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor entitle the legal representatives
or heirs of such Person or any Holder for such Person, to claim an accounting,
take any action or bring any proceeding in any court for a partition or winding
up of the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee, the Administrative Trustees and the Holders of all of the Common
Securities, without the consent of any Holder of the Capital Securities, (i) to
cure any ambiguity, correct or supplement any provision herein that may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement, or
(ii) to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Issuer Trust will not be
taxable as a corporation or classified as other than a grantor trust for United
States Federal income tax purposes at all times that any Trust Securities are
outstanding or to ensure that the Issuer Trust 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, and any
such amendment of this Trust Agreement shall become effective when notice
thereof is given to the Holders.
(b) Except as provided in Section 10.2(c), any provision of this Trust
Agreement may be amended by the Issuer Trustees and the Holders of all of the
Common Securities and with (i) the consent of Holders of at least a Majority in
Liquidation Amount of the 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 Trust to be taxable as a corporation or as
other than a grantor trust for United States Federal income tax purposes or
affect the Issuer Trust's exemption from status as an "investment company" under
the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6), this 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
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the Trust Securities as of a specified date, or (ii) restrict the right of a
Holder to institute suit for the enforcement of any such payment on or after
such date; and notwithstanding any other provision herein, without the unanimous
consent of the Holders (such consent being obtained in accordance with Section
6.3 or 6.6), this Section 10.2(c) may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no Issuer
Trustee shall enter into or consent to any amendment to this Trust Agreement
that would cause the Issuer Trust to fail or cease to qualify for the exemption
from status as an "investment company" under the Investment Company Act or to be
taxable as a corporation or to be classified as other than a grantor trust for
United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative Trustees, this Trust
Agreement may not be amended in a manner that imposes any additional obligation
on the Depositor or the Administrative Trustees.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement that affects its own rights,
duties or immunities under this Trust Agreement. The Property Trustee shall be
entitled to receive an Opinion of Counsel and an Officers' Certificate stating
that any amendment to this Trust Agreement is in compliance with this Trust
Agreement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS,
THE ISSUER TRUST, THE DEPOSITOR AND THE ISSUER TRUSTEES WITH RESPECT TO THIS
TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS
CONFLICTS OF LAWS PROVISIONS.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no Distributions shall
accumulate on such unpaid amount for the period after such date.
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<PAGE>
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Issuer Trust and any Issuer Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Capital Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of the
Common Securities or the Depositor, to Dime Bancorp, Inc., 589 Fifth Avenue, New
York, New York 10017, Attention: General Counsel, facsimile no.: (212) 326-6110,
or to such other address as may be specified in a written notice by the Holder
of the Common Securities or the Depositor, as the case may be, to the Property
Trustee. Such notice, demand or other communication to or upon a Holder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission. Such notice, demand or other communication to
or upon the Depositor shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Property Trustee, the Delaware Trustee, the Administrative Trustees or the
Issuer Trust shall be given in writing addressed to such Person as follows: (a)
with respect to the Property Trustee, to The Chase Manhattan Bank, 450 West 33rd
Street, 15th Floor, New York, New York 10001, Attention: Corporate Trust
Administration, facsimile (212) 946-8161; (b) with respect to the Delaware
Trustee, to Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington,
Delaware 19801, Attention: Corporate Trust Administration, facsimile (302) 428-
3390; (c) with respect to the Administrative Trustees, to them at the address
above for notices to the Depositor, marked "Attention: Administrative Trustees
of Dime Capital Trust I"; and (d) with respect to the Issuer Trust, to its
principal office specified in Section 2.2, with a copy to the Property Trustee.
Such notice, demand or other communication to or upon the Issuer Trust, the
Property Trustee or the Administrative Trustees shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Issuer
Trust, the Property Trustee or such Administrative Trustee.
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<PAGE>
Section 10.9. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of the
Holders that, until at least one year and one day after the Issuer Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. If the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Issuer
Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be stopped
and precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustees or the Issuer Trust may assert.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture
Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Issuer Trustee that is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act through
operation of Section 318(c) thereof, such imposed duties shall control. If any
provision of this Trust Agreement modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Trust Agreement as so modified or excluded, as
the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.
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<PAGE>
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee
Agreement, Expense Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE
AGREEMENT, THE EXPENSE AGREEMENT AND THE INDENTURE, AND AGREEMENT TO THE
SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND
SUCH OTHERS.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement.
DIME BANCORP, INC.
as Depositor
By: /s/ D. James Daras
-------------------
Name: D. James Daras
Title: Executive Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Property Trustee
By: /s/ A.K. Crain
---------------
Name: Andrea Koster-Crain
Title: Vice President
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ John J. Cashin
-------------------
Name: John J. Cashin
Title: Senior Trust Officer
By: /s/ Gene C. Brooks
-------------------
Name: Gene C. Brooks
as Administrative Trustee
By: /s/ D. James Daras
-------------------
Name: D. James Daras
as Administrative Trustee
<PAGE>
Exhibit A
CERTIFICATE OF TRUST OF
DIME CAPITAL TRUST I
----------------------------
THIS Certificate of Trust of Dime Capital I (the "Trust"), dated April
4, 1997, is being duly executed and filed by Chase Manhattan Bank Delaware, a
Delaware banking corporation, as trustee, to form a business trust under the
Delaware Business Trust Act (12 Del. Ch. (S) 3801 et seq.).
1. Name. The name of the business trust formed hereby is Dime
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is Chase Manhattan Bank Delaware, 1201
Market Street, Wilmington, Delaware 19801, Attn: Corporate Trust
Administration.
3. Effective Date. This Certificate of Trust shall be effective
on April 4, 1997.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of Trust,
has executed this Certificate of Trust as of the date first above written.
CHASE MANHATTAN BANK DELAWARE,
as trustee
By: /s/ John J. Cashin
-----------------------------
Name: John J. Cashin
Title: Senior Trust Officer
A-1
<PAGE>
Exhibit B
[FORM OF LETTER OF REPRESENTATIONS]
BOOK-ENTRY-ONLY CORPORATE DEBT ISSUES
Letter of Representations
[To be Completed by Issuer and Agent]
DIME CAPITAL TRUST I
------------------------------
[Name of Issuer]
(issue fully and unconditionally guaranteed by
Dime Bancorp, Inc.)
THE CHASE MANHATTAN BANK
----------------------------------
[Name of Agent]
May ____, 1997
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street, 49th Floor
New York, NY 10041-0099
Re: Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
------------------------------------------------
[Issue Description]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). The Securities
represent preferred beneficial interests in Dime Capital Trust I (the "Issuer").
The Issuer is a statutory business trust created under the laws of the State of
Delaware by (i) the execution of a trust agreement (the "Document") between Dime
Bancorp, Inc., a Delaware corporation (the "Corporation"; the Corporation being
the holding company of The Dime Savings Bank of New York, FSB), as Depositor,
and Chase Manhattan Bank Delaware, as Delaware Trustee, and (ii) the filing of a
certificate of trust with the Delaware Secretary of State on April 4, 1997. The
Issuer's business and affairs are conducted by the Issuer Trustees: The Chase
Manhattan Bank, as Property Trustee ("Agent"), Chase Manhattan Bank Delaware, as
Delaware Trustee, and two individual Administrative Trustees who are employees
or officers of or affiliated with the Corporation. The Corporation will be the
owner of all of the beneficial interests
B-1
<PAGE>
represented by common securities of the Issuer ("Securities A Common Securities"
and, collectively, with the Securities, the "Series A Securities"). The Issuer
exists for the sole purpose of issuing the Series A Securities and investing the
proceeds thereof in $_______ initial principal amount of ___% Junior
Subordinated Deferrable Interest Debentures, Series A, to be issued by the
Corporation.
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, BT
Securities Corporation and Lehman Brothers Inc. are distributing the Securities
through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
XI. Prior to closing on the Securities on May 6, 1997, there shall be
deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co., for the Securities in the face amounts set forth on
Schedule A hereto, the total of which represents 100% of the liquidation amount
of such Securities. If, however, the aggregate liquidation amount exceeds $200
million, one certificate will be issued with respect to each $200 million of
liquidation amount and an additional certificate will be issued with respect to
any remaining liquidation amount. Each Security certificate shall bear the
following legend:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
XII. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notices of the provisions of the
Security certificate(s) by virtue of submission of such certificate(s) to DTC.
XIII. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall, to the extent possible, send notice of such
record date to DTC not less than 15 calendar days in advance of such record
date. Notices to DTC pursuant to this Paragraph by telecopy shall be sent to
DTC's Reorganization Department at (212) 709-6896
B-2
<PAGE>
or (212) 709-6897, and receipt of such notices shall be confirmed by telephoning
(212) 709-6870. Notices to DTC pursuant to this Paragraph by mail or by any
other means shall be sent to DTC's Reorganization Department as indicated in
Paragraph 5.
XIV. In the event of a full or partial redemption, Issuer or Agent shall
send a notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be mailed to Security holders or
published (the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before or, if
possible, two business days before the Publication Date. Issuer or Agent shall
forward such notice either in a separate secure transmission for each CUSIP
number or in a secure transmission for multiple CUSIP numbers (if applicable)
which includes a manifest or list of each CUSIP number submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be not less than 30 days nor more than 60 days prior to
the redemption date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to this Paragraph by
telecopy shall be sent to DTC's Call Notification Department at (516) 227-4039
or (516) 227-4190. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has been received, such party shall
telephone (516) 227-4070. Notices to DTC pursuant to this Paragraph by mail or
by any other means shall be sent to:
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
In the event of a stock split, conversion, recapitalization or any
other similar transaction resulting in the cancellation of all or part of any of
the Securities outstanding, the Issuer or Agent shall send DTC a notice of such
event at least five (5) business days prior to the effective date of such event.
XV. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders specifying the terms of the tender and the Publication Date of
such notice shall be sent to DTC by a secure means in the manner set forth in
the preceding Paragraph. Notices to DTC pursuant to this Paragraph and notices
of other corporate actions by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-1093 or (212) 709-1094, and receipt of such notices
shall be confirmed by telephoning (212) 709-6884. Notices to DTC pursuant to
the above by mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
B-3
<PAGE>
The Depository Trust Company
7 Hanover Square; 23rd Floor
New York, NY 10004-2695
XVI. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
XVII. In the event of a change in the interest rate, Agent shall send
notice of such change to Standard & Poor's Corporation. Such notice, which
shall also include Agent contact's name and telephone number, shall also be sent
to DTC's Dividend Department either by telecopy to (212) 709-1723, or if by mail
or by any other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
XVIII. Issuer or Agent shall provide a written notice of interest
payment information to a standard interest announcement service subscribed to by
DTC as soon as the information is available. In the unlikely event that no such
service exists, Issuer or Agent shall provide such notice directly to DTC
electronically, as previously arranged by Issuer or Agent and DTC, as soon as
the information is available. If electronic transmission has not been arranged,
absent any other arrangements between Issuer or Agent and DTC, such information
should be sent by telecopy to DTC's Dividend Department at (212) 709-1723 or
(212) 709-1686, and receipt of such notices shall be confirmed by telephoning
(212) 709-1270. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
XIX. Issuer or Agent shall provide CUSIP numbers for each issue for which
payment is being sent, as well as the dollar and cent amount of the payment for
each issue to DTC, no later than noon (Eastern Time) on the payment date.
XX. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. Absent any other arrangements between
Issuer or Agent and DTC, such funds shall be wired as follows:
B-4
<PAGE>
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # 066-026776
XXI. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
XXII. Principal payments (plus accrued interest, if any) as a result
of optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the first
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # 066-027608
XXIII. DTC may direct Issuer or Agent to use any other number or
address as the number or address to which notices or payments of interest or
principal may be sent.
XXIV. In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response to Issuer's or
Agent's invitation) necessitating a reduction in the aggregate principal amount
of Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate: or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of complete redemption, in which case
the certificate will be presented to Issuer or Agent prior to payment, if
required.
XXV. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In
B-5
<PAGE>
such event, Issuer or Agent shall issue, transfer, and exchange certificates in
appropriate amounts, as required by DTC and others.
XXVI. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or Agent
the aggregate liquidation amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate certificates
evidencing Securities to any DTC Participant having Securities credited to its
DTC accounts.
XXVII. Nothing herein shall be deemed to require Agent to advance
funds on behalf of Issuer.
XXVIII. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together constitute but one and the same instrument.
XXIX. This Letter of Representations is governed by, and shall be
construed in accordance with, the laws of the State of New York.
XXX. The following riders, attached hereto, are hereby incorporated into
this Letter of Representations:
Rider 1A
---------------------------------------
Rider 2A
---------------------------------------
B-6
<PAGE>
NOTES: Very truly yours,
- -----
A. If there is an Agent (as defined Dime Capital Trust I
in this Letter of Representations), ____________________________________
Agent, as well as Issuer, must sign (Issuer)
this Letter. If there is no Agent,
in signing this Letter Issuer By DIME BANCORP, INC., as
__________ undertakes to perform all Depositor
of the obligations set forth herein.
B. Schedule B contains statements that By: ________________________________
DTC believes accurately describe DTC, (Authorized Officer's Signature)
the method of effecting book-entry
transfers of securities distributed
through DTC, and certain related The Chase Manhattan Bank
matters. _____________________________________
(Agent)
By: _________________________________
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: ___________________________________
cc: Underwriter
Underwriter's Counsel
B-7
<PAGE>
SCHEDULE A
----------
DIME CAPITAL TRUST I
--------------------------------------------
$ % Capital Securities, Series A
--------------------------------------------
(Describe Issue)
CUSIP Number Liquidation Amount Maturity Date Interest Rate
- ------------ ------------------ ------------- -------------
<PAGE>
SCHEDULE B
----------
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
-----------------------------------
(Prepared by DTC--bracketed material may be applicable only to certain issues)
I. The Depositary Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully-registered Security certificate will be
issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $200 million, one certificate
will be issued with respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
II. 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 Securities
Exchange Act of 1934. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges, in
deposited securities through 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 a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants"). The
Rules applicable to DTC and its Participants are on file with the Securities and
Exchange Commission.
III. ___________________________________ the DTC system must be made
by or through Direct Participants, which will receive a credit for the
Securities on DTC's records. The ownership interest of each actual purchaser of
each Security ("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 purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic statements of their holdings, from the Direct or Indirect Participant
through which the Beneficial Owner entered into the
-i-
<PAGE>
transaction. Transfers of ownership interests in the Securities 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 Securities, except in the event that use of the
book-entry system for the Securities is discontinued.
IV. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
_________________ responsible for keeping records of the ______________________.
V. 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 will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
[VI. Redemption notices shall be sent to DTC. If less than all of
the Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in such
issue to be redeemed.]
VII. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer 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 the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
VIII. Principal and interest payments on the Securities will be made
to Cede & Co., as nominee of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent, on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
principal and interest to Cede & Co. is the responsibility of Issuer or Agent,
disbursement of such payments to Direct Participants shall be the responsibility
of DTC, and disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
[IX. A Beneficial Owner shall give notice to elect to have its
Securities purchased or tendered, through its Participant, to [Tender
Remarketing] Agent, and shall effect delivery of such
-ii-
<PAGE>
Securities by causing the Direct Participant to transfer the Participant's
interest in the Securities, on DTC's records, to [Tender Remarketing] Agent. The
requirement for physical delivery of Securities in connection with an optional
tender or a mandatory purchase will be deemed satisfied when the ownership
rights in the Securities are transferred by Direct Participants on DTC's records
and followed by a book-entry credit of tendered Securities to [Tender/DTC
Remarketing] Agent's account.]
X. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent. Under such circumstances, in the event that a
successor securities depository is not obtained, Security certificates are
required to be printed and delivered.
XI. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
XII. The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that Issuer believes to be
reliable, but Issuer takes no responsibility for the accuracy thereof.
-iii-
<PAGE>
RIDER 1A
- --------
The Securities represent preferred beneficial interests in Dime Capital
Trust I (the "Issuer"). The Issuer is a statutory business trust created under
the laws of the State of Delaware by (i) the execution of a trust agreement (the
"Document") between Dime Bancorp, Inc., a Delaware corporation (the
"Corporation"; the Corporation being the holding company of The Dime Savings
Bank of New York, FSB), as Depositor, and Chase Manhattan Bank Delaware, as
Delaware Trustee, and (ii) the filing of a certificate of trust with the
Delaware Secretary of State on April 4, 1997. The Issuer's business and affairs
are conducted by the Issuer Trustees: The Chase Manhattan Bank, as Property
Trustee ("Agent"), Chase Manhattan Bank Delaware, as Delaware Trustee, and two
individual Administrative Trustees who are employees or officers of or
affiliated with the Corporation. The Corporation will be the owner of all of the
beneficial interests represented by common securities of the Issuer ("Series A
Common Securities" and, collectively, with the Securities, the "Series A
Securities"). The Issuer exists for the sole purpose of issuing the Series A
Securities and investing the proceeds thereof in $__________ initial principal
amount of ___% Junior Subordinated Deferrable Interest Debentures, Series A, to
be issued by the Corporation.
-iv-
<PAGE>
RIDER 2A
- --------
In the event of a stock split, conversion, recapitalization or any other
similar transaction resulting in the cancellation of all or part of any of the
Securities outstanding, the Issuer or Agent shall send DTC a notice of such
event at least five (5) business days prior to the effective date of such event.
-v-
<PAGE>
Exhibit C
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE
OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT AND ONLY IN CONNECTION
WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT OF THE
EXPENSE AGREEMENT REFERRED TO THEREIN
Certificate Number Number of Common Securities
CI-
Certificate Evidencing Common Securities
of
Dime Capital Trust I
_____% Common Securities
(Liquidation Amount $1,000 per Common Security)
Dime Capital Trust I, a statutory business trust formed under the laws of
the State of Delaware (the "Issuer Trust"), hereby certifies that [NAME OF
HOLDER] (the "Holder") is the registered owner of _____________ common
securities of the Issuer Trust representing common undivided beneficial
interests in the assets of the Issuer Trust and designated the _____% Common
Securities (liquidation amount $1,000 per Common Security) (the "Common
Securities"). Except in accordance with Section 5.11 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof other than in accordance therewith shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of May 6, 1997, as the same may be amended from
time to time (the "Trust Agreement"), among Dime Bancorp, Inc., as Depositor,
The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee, and the Administrative Trustees named therein, including the
designation of the terms of the Common Securities as set forth therein. The
Issuer Trust will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Issuer Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
C-1
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate.
Dated:
DIME CAPITAL TRUST I
By:
---------------------------
Name:
Administrative Trustee
C-2
<PAGE>
Exhibit D
[FORM OF EXPENSE AGREEMENT]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of _______ __,
1997, between Dime Bancorp, Inc., a Delaware corporation (the "Depositor"), and
Dime Capital Trust I, a Delaware business trust (the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire Debentures from the Depositor and to issue
and sell _____% Capital Securities, Series A (the "Capital Securities") with
such powers, preferences and special rights and restrictions as are set forth in
the Amended and Restated Trust Agreement of the Issuer Trust, dated as of
__________ __, 1997 among the Depositor, as depositor, The Chase Manhattan Bank,
as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, the
Administrative Trustees named therein and the Holders from time to time of the
Trust Securities, as the same may be amended from time to time (the "Trust
Agreement"); and
WHEREAS, terms used but not defined herein have the meanings set
forth in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged:
ARTICLE I
SECTION 1.1. Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities of the
Issuer Trust, other than obligations of the Issuer Trust to pay to holders of
any Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Depositor under this Agreement shall
constitute unsecured obligations of the Depositor and shall rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Depositor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Depositor
hereunder. The obligations of the Depositor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Depositor.
SECTION 1.3. Term of Agreement. This Agreement shall terminate and be
of no further force and effect upon the dissolution of the Issuer Trust,
provided, however, that this Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any holder of Capital
Securities or any Beneficiary must restore payment of any sums paid under the
Capital Securities, under any Obligation, under the Guarantee Agreement dated
the date hereof between the Depositor and The Chase Manhattan Bank, as guarantee
trustee,
D-1
<PAGE>
or under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 1.4. Waiver of Notice. The Depositor hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Depositor hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants, agreements
and duties of the Depositor under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all
or any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer Trust or any of the
assets of the Issuer Trust (other than the liquidation of the Issuer Trust in
accordance with the terms of the Trust Agreement).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Depositor with respect to the happening of any of the
foregoing.
SECTION 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Depositor and the Depositor waives any right or remedy to
require that any action be brought against the Issuer Trust or any other person
or entity before proceeding against the Depositor.
SECTION 1.7. Subrogation. The Depositor shall be subrogated to all
rights (if any) of the Issuer Trust in respect of any amounts paid to the
Beneficiaries by the Depositor under this Agreement; provided, however, that the
Depositor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void.
SECTION 2.2. Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Depositor and shall inure to the benefit of the
Beneficiaries.
D-2
<PAGE>
SECTION 2.3. Amendment. So long as there remains any Beneficiary or
any Capital Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Capital Securities without the consent of such Beneficiary or the holders of the
Capital Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex):
If given to the Depositor:
Dime Bancorp, Inc.
589 Fifth Avenue
New York, New York 10017
Facsimile No.: (212) 326-6170
Attention: Secretary
If given to the Issuer Trust:
Dime Capital Trust I
c/o The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile No.: (212) 946-8161
Attention: Corporate Trust Administration
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
D-3
<PAGE>
THIS AGREEMENT is executed as of the day and year first above
written.
DIME BANCORP, INC.
By:
-----------------------------
Name:
Title:
DIME CAPITAL TRUST I
By:
-----------------------------
Name:
Administrative Trustee
D-4
<PAGE>
Exhibit E
[FORM OF CAPITAL SECURITIES CERTIFICATE]
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE EVIDENCED BY A
BOOK-ENTRY CAPITAL SECURITIES CERTIFICATE, INSERT--This Capital Securities
Certificate is a Book-Entry Capital Securities Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Capital Securities Certificate is
exchangeable for Capital Securities Certificates registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary, except in
the limited circumstances described in the Trust Agreement.
Unless this Capital Securities Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to Dime Capital Trust I or its agent for registration of
transfer, exchange or payment, and any Capital Securities Certificate issued is
registered in the name of Cede & Co. or such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
E-1
<PAGE>
Certificate Number Aggregate Principal Amount of Capital Securities
CAI-
CUSIP NO.
Certificate Evidencing Capital Securities
of
Dime Capital Trust I
_____% Capital Securities, Series __
(Liquidation Amount $1,000 per Capital Security)
Dime Capital Trust I, a statutory business trust formed under the laws of
the State of Delaware (the "Issuer Trust"), hereby certifies that (the "Holder")
is the registered owner of ($__________) aggregate liquidation amount of Capital
Securities of the Issuer Trust representing an undivided preferred beneficial
interest in the assets of the Issuer Trust and designated the Dime Capital Trust
I 9.33% Capital Securities, Series A (liquidation amount $1,000 per Capital
Security) (the "Capital Securities"). The Capital Securities are transferable on
the books and records of the Issuer Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.5 of the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities are set forth in, and this
certificate and the Capital Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Issuer Trust, dated as of May 6, 1997, as the
same may be amended from time to time (the "Trust Agreement"), among Dime
Bancorp, Inc., as Depositor, The Chase Manhattan Bank, as Property Trustee,
Chase Manhattan Bank Delaware, as Delaware Trustee, the Administrative Trustees
named therein and the Holders from time to time of the Trust Securities ,
including the designation of the terms of the Capital Securities as set forth
therein. The Holder is entitled to the benefits of the Guarantee Agreement
entered into by Dime Bancorp, Inc., a Delaware corporation, and The Chase
Manhattan Bank, as guarantee trustee, dated as of May 6, 1997 (the "Guarantee
Agreement"), to the extent provided therein. The Issuer Trust will furnish a
copy of the Trust Agreement and the Guarantee Agreement to the Holder without
charge upon written request to the Issuer Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
E-2
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate.
Dated:
DIME CAPITAL TRUST I
By:
-------------------------
Name:
Administrative Trustee
E-3
<PAGE>
This is one of the Capital Securities of the Issuer Trust referred to
in the within mentioned Trust Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
-------------------------
Authorized Officer
E-4
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Securities Certificate to:
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________
________________________________________________________________________________
agent to transfer this Capital Securities Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: _____________________________________________________________________
(Sign exactly as your name appears on the other side of this Capital Securities
Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
E-5
<PAGE>
Exhibit 4.4
Form of Capital Security
This Capital Securities Certificate is a Book-Entry Capital Securities
Certificate within the meaning of the Trust Agreement hereinafter referred to
and is registered in the name of a Depositary or a nominee of a Depositary. This
Capital Securities Certificate is exchangeable for Capital Securities
Certificates registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Trust Agreement and
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary, except in the limited circumstances described in the
Trust Agreement.
Unless this Capital Securities Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Dime Capital Trust I or its agent for registration of transfer, exchange or
payment, and any Capital Securities Certificate issued is registered in the name
of Cede & Co. or such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
CERTIFICATE NUMBER AGGREGATE LIQUIDATION AMOUNT OF CAPITAL SECURITIES
CAI-1 $200,000,000
CUSIP NO. 25432NAA2
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
DIME CAPITAL TRUST I
9.33% CAPITAL SECURITIES, SERIES A
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
Dime Capital Trust I, a statutory business trust formed under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of Two Hundred Million Dollars ($200,000,000)
aggregate liquidation amount of capital securities of the Issuer Trust
representing an undivided preferred beneficial interest in the assets of the
Issuer Trust and designated the Dime Capital Trust I 9.33% Capital Securities,
Series A (Liquidation Amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and records
of the Issuer Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer as provided in
Section 5.5 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in
<PAGE>
all respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Issuer Trust, dated as of May 6, 1997, as the same may be
amended from time to time (the "Trust Agreement"), among Dime Bancorp, Inc., as
Depositor, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank
Delaware, as Delaware Trustee, the Administrative Trustees named therein and the
Holders from time to time of the Trust Securities, including the designation of
the terms of the Capital Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement entered into by Dime Bancorp, Inc., a
Delaware corporation, and The Chase Manhattan Bank, as guarantee trustee, dated
as of May 6, 1997 (the "Guarantee Agreement"), to the extent provided therein.
The Issuer Trust will furnish a copy of the Issuer Trust Agreement and the
Guarantee Agreement to the Holder without charge upon written request to the
Issuer Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
<PAGE>
In Witness Whereof, one of the Administrative Trustees of the Issuer Trust has
executed this 9.33% Capital Securities, Series A certificate this 6th day of
May, 1997.
Dime Capital Trust I
By: /s/ Gene C. Brooks
-------------------
Name: Gene C. Brooks
Administrative Trustee
<PAGE>
This is one of the 9.33% Capital Securities, Series A of the Issuer Trust
referred to in the within mentioned Trust Agreement.
Dated: May 6, 1997
The Chase Manhattan Bank,
as Property Trustee
By: /s/ A.K. Crain
---------------
Authorized Officer
<PAGE>
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Capital
Securities Certificate to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
-------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Capital Securities Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: ___________________________________________________________________
(Sign exactly as your name appears on the other side of this
Capital Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
<PAGE>
Exhibit 4.5
================================================================================
GUARANTEE AGREEMENT
BY AND BETWEEN
DIME BANCORP, INC.,
as Guarantor
and
THE CHASE MANHATTAN BANK,
as Guarantee Trustee
RELATING TO
DIME CAPITAL TRUST I
---------------
Dated as of May 6, 1997
---------------
================================================================================
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
<S> <C>
310(a)......................................... 4.1(a)
310(b)......................................... 4.1(c), 2.8
310(c)......................................... Inapplicable
311(a)......................................... 2.2(b)
311(b)......................................... 2.2(b)
311(c)......................................... Inapplicable
312(a)......................................... 2.2(a)
312(b)......................................... 2.2(b)
313 ......................................... 2.3
314(a)......................................... 2.4
314(b)......................................... Inapplicable
314(c)......................................... 2.5
314(d)......................................... Inapplicable
314(e)......................................... 1.1, 2.5, 3.2
314(f)......................................... 2.1, 3.2
315(a)......................................... 3.1(d)
315(b)......................................... 2.7
315(c)......................................... 3.1
315(d)......................................... 3.1(d)
316(a)......................................... 1.1, 2.6, 5.4
316(b)......................................... 5.3
316(c)......................................... 8.2
317(a)......................................... Inapplicable
317(b)......................................... Inapplicable
318(a)......................................... 2.1
318(b)......................................... 2.1
318(c)......................................... 2.1
</TABLE>
- ----------------
* This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
-i-
<PAGE>
TABLE OF CONTENTS
Page
<TABLE>
<CAPTION>
ARTICLE I
Definitions
<C> <S> <C>
Section 1.1. Definitions..................................... 1
ARTICLE II
Trust Indenture Act
Section 2.1. Trust Indenture Act; Application................ 4
Section 2.2. List of Holders................................. 5
Section 2.3. Reports by the Guarantee Trustee................ 5
Section 2.4. Periodic Reports to the Guarantee Trustee....... 5
Section 2.5. Evidence of Compliance with Conditions Precedent 5
Section 2.6. Events of Default; Waiver....................... 6
Section 2.7. Event of Default; Notice........................ 6
Section 2.8. Conflicting Interests........................... 6
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
Section 3.1. Powers and Duties of the Guarantee Trustee...... 6
Section 3.2. Certain Rights of Guarantee Trustee............. 8
Section 3.3. Compensation; Indemnity; Fees................... 10
ARTICLE IV
Guarantee Trustee
Section 4.1. Guarantee Trustee; Eligibility.................. 10
Section 4.2. Appointment, Removal and Resignation of
the Guarantee Trustee........................... 11
ARTICLE V
Guarantee
Section 5.1. Guarantee....................................... 12
Section 5.2. Waiver of Notice and Demand..................... 12
Section 5.3. Obligations Not Affected........................ 12
Section 5.4. Rights of Holders............................... 13
Section 5.5. Guarantee of Payment............................ 13
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
Section 5.6. Subrogation..................................... 13
Section 5.7. Independent Obligations......................... 14
ARTICLE VI
Covenants and Subordination
Section 6.1. Subordination................................... 14
Section 6.2. Pari Passu Guarantees........................... 14
ARTICLE VII
Termination
Section 7.1. Termination..................................... 15
ARTICLE VIII
Miscellaneous
Section 8.1. Successors and Assigns......................... 15
Section 8.2. Amendments..................................... 15
Section 8.3. Notices........................................ 15
Section 8.4. Benefit........................................ 16
Section 8.5. Not Responsible for Recitals or Issuance of
Guarantee.................................... 17
Section 8.6. Governing Law.................................. 17
Section 8.7. Counterparts................................... 17
</TABLE>
-iii-
<PAGE>
GUARANTEE AGREEMENT, dated as of May 6, 1997, between DIME BANCORP, INC., a
Delaware corporation (the "Guarantor"), having its principal office at 589 Fifth
Avenue, New York, New York 10017, and THE CHASE MANHATTAN BANK, a New York
banking corporation, as trustee (the "Guarantee Trustee"), for the benefit of
the Holders (as defined herein) from time to time of the Capital Securities (as
defined herein) of DIME CAPITAL TRUST I, a Delaware statutory business trust
(the "Issuer Trust").
Recitals of the Guarantor
Whereas, pursuant to an Amended and Restated Trust Agreement, dated as of May
6, 1997 (the "Trust Agreement"), among Dime Bancorp, Inc., as Depositor, the
Property Trustee, the Delaware Trustee, the Administrative Trustees named
therein and the holders from time to time of capital securities or common
securities of the Issuer Trust, the Issuer Trust is issuing $200,000,000
aggregate Liquidation Amount (as defined in the Trust Agreement) of its 9.33%
Capital Securities, Series A (Liquidation Amount $1,000 per Capital Security)
(the "Capital Securities"), representing preferred undivided beneficial
interests in the assets of the Issuer Trust and having the terms set forth in
the Trust Agreement; and
Whereas, the Capital Securities will be issued by the Issuer Trust and the
proceeds thereof, together with the proceeds from the issuance of the Issuer
Trust's Common Securities (as defined herein), will be used to purchase the
Debentures (as defined in the Trust Agreement) of the Guarantor, which
Debentures will be deposited as trust assets with The Chase Manhattan Bank, as
Property Trustee under the Trust Agreement; and
Whereas, as an incentive for the Holders to purchase the Capital Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein.
Now, Therefore, in consideration of the purchase of Capital Securities by
each Holder, which purchase the Guarantor hereby acknowledges shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time.
ARTICLE I
Definitions
Section 1.1. Definitions.
For all purposes of this Guarantee Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
<PAGE>
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(f) Unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Guarantee Agreement; and
The words "hereby," "herein," "hereof" and "hereunder" and other words of
similar import refer to this Guarantee Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the board of directors of the Guarantor or the
Strategic Planning Committee of the board of directors of the Guarantor (or any
other committee of the board of directors of the Guarantor performing similar
functions) or a committee designated by the board of directors of the Guarantor
(or such committee), comprised of two or more members of the board of directors
of the Guarantor or officers of the Guarantor, or both.
"Capital Securities" has the meaning specified in the recitals to this
Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any of its payment
obligations under this Guarantee Agreement or (ii) a default by the Guarantor in
any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified, amended or
supplemented from time to time.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Capital Securities, to the extent not paid or
made by or on behalf of the Issuer Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time; (ii) the Redemption Price (as defined in the
Trust Agreement) with respect to any Capital Securities called for redemption by
the Issuer Trust, to the extent the Issuer Trust shall have funds on
-2-
<PAGE>
hand available therefor at such time; and (iii) upon a voluntary or involuntary
termination, winding-up or liquidation of the Issuer Trust, unless Debentures
are distributed to the Holders as provided in the Trust Agreement, the lesser of
(a) the Liquidation Distribution (as defined in the Trust Agreement) with
respect to the Capital Securities, to the extent that the Issuer Trust shall
have funds on hand available therefor at such time, and (b) the amount of assets
of the Issuer Trust remaining available for distribution to Holders on
liquidation of the Issuer Trust.
"Guarantee Trustee" means The Chase Manhattan Bank, solely in its capacity as
Guarantee Trustee and not in its individual capacity, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the preamble to this Guarantee
Agreement.
"Holder" means any Holder (as defined in the Trust Agreement) of any Capital
Securities; provided, however, that in determining whether the holders of the
requisite percentage of Capital Securities have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the Guarantor, or any
Affiliate of the Guarantor.
"Indenture" means the Junior Subordinated Indenture, dated as of May 6, 1997,
between Dime Bancorp, Inc. and The Chase Manhattan Bank, as trustee, as the same
may be modified, amended or supplemented from time to time.
"Issuer Trust" has the meaning specified in the preamble to this Guarantee
Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Capital Securities" means, except as
provided by the Trust Indenture Act, Capital Securities representing more than
50% of the aggregate Liquidation Amount (as defined in the Trust Agreement) of
all Capital Securities then Outstanding (as defined in the Trust Agreement).
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, the President or any Executive Vice President of the Guarantor, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Guarantor, and delivered to the Guarantee Trustee. Any Officer's
Cetificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that such
officer has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
-3-
<PAGE>
(c) a statement that such officer has made such examination or investigation
as, in such officer's opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of such officer, such condition
or covenant has been complied with.
"Person" means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, company, limited
liability company, trust, business trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer of the Guarantee Trustee with direct responsibility for the
administration of this Guarantee Agreement and also means, with respect to a
particular matter, any other officer to whom such matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee possessing
the qualifications to act as Guarantee Trustee under Section 4.1 and appointed
pursuant to Section 4.2(b).
"Trust Agreement" means the Amended and Restated Trust Agreement of the
Issuer Trust referred to in the recitals to this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Guarantee Agreement was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vice President," when used with respect to the Guarantor, means any duly
appointed Executive Vice President.
ARTICLE II
Trust Indenture Act
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Section 310 to 317,
inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control. If any provision of this
-4-
<PAGE>
Guarantee Agreement modifies or excludes any provision of the Trust Indenture
Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Guarantee Agreement as so modified or to be excluded, as the
case may be.
Section 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, on or before June 30 and December 31 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders (a "List of Holders") as of a date not more than 15
days prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished, in each case to the extent such
information has not otherwise been received by the Guarantee Trustee in its
capacity as such; provided, however, that no such list need be furnished to the
Guarantee Trustee at any time that the Property Trustee is serving as Securities
Registrar. The Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements of Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year, commencing May 15, 1998, the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
The Guarantor will notify the Guarantee Trustee if and when any Capital
Securities are listed on any stock exchange.
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as are required by Section 314 of the Trust Indenture Act and the
compliance certificate required by Section 314 of the Trust Indenture Act, in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, provided that such compliance certificate shall be delivered on
or before 120 days after the end of the fiscal year of the Guarantor.
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given
in the form of an Officers' Certificate.
-5-
<PAGE>
Section 2.6. Events of Default; Waiver.
An Event of Default will occur upon (i) a default by the Guarantor in any of
its payment obligations under this Guarantee Agreement or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, by vote, on behalf of the Holders of all the Capital Securities,
waive any past default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders,
notice of any such Event of Default known to the Guarantee Trustee, unless such
Event of Default has been cured before the giving of such notice, provided that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written notice
(except in the case of a default in the payment of a Guarantee Payment), or a
Responsible Officer charged with the administration of this Guarantee Agreement
shall have obtained actual knowledge, of such Event of Default.
Section 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee hereunder. The right, title and interest of the Guarantee
-6-
<PAGE>
Trustee, as such, hereunder shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. The Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee Agreement, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement (including pursuant to Section 2.1), and the Guarantee
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Guarantee
Agreement and no implied covenants or obligations shall be read into
this Guarantee Agreement against the Guarantee Trustee, except as
provided by law; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement.
(ii) The Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made.
(iii) The Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation
Amount of the Capital Securities relating to the time, method and place of
-7-
<PAGE>
conducting any proceeding for any remedy available to the Guarantee
Trustee, or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement.
(iv) No provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to any recording,
filing or registration of any instrument (or any rerecording, refiling or
reregistration thereof).
(v) Any action taken by the Guarantee Trustee or its agents hereunder
shall bind the Holders, and the signature of the Guarantee Trustee or its
agents alone shall be sufficient and effective to perform any such action.
No third party shall be required to inquire as to the authority of the
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Guarantee Agreement, both of which shall be
conclusively evidenced by the Guarantee Trustee's or its agent's taking
such action.
(vi) The Guarantee Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Guarantee Agreement.
(vii) The Guarantee Trustee may consult with legal counsel of its
selection, and the written advice or opinion of such legal counsel with
respect to legal matters shall be full and
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<PAGE>
complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in
accordance with such advice or opinion. Such legal counsel may be legal
counsel to the Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction.
(viii) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder unless such Holder shall have
provided to the Guarantee Trustee such adequate security and indemnity as
would satisfy a reasonable person in the position of the Guarantee Trustee
against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Guarantee Trustee; provided that nothing contained in this Section
3.2(a)(viii) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee Agreement.
(ix) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(x) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed by it with due care hereunder.
(xi) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
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Section 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such reasonable
compensation for all services rendered by it hereunder or as otherwise may be
agreed in writing by the Guarantor and the Guarantee Trustee from time to time
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Guarantee
Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by the Guarantee Trustee in accordance with any provision of
this Guarantee Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify the Guarantee Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence, wilful misconduct or
bad faith on the part of the Guarantee Trustee, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
The Guarantee Trustee shall be fully protected in relying in good faith upon
the records of the Issuer Trust or the Guarantor and upon such information,
opinions, reports or statements presented to the Issuer Trust or the Guarantor
by any Person as to matters the Guarantee Trustee reasonably believes are within
such other Person's professional or expert competence and who, if selected by
such Guarantee Trustee, has been selected with reasonable care by such Guarantee
Trustee, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
Holders might properly be paid.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. The provisions of this Section 3.3 shall survive the resignation or
removal of the Guarantee Trustee pursuant to this Guarantee Agreement and the
termination of this Guarantee Agreement.
ARTICLE IV
Guarantee Trustee
Section 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
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(ii) be a Person that is eligible pursuant to the Trust Indenture Act to
act as such and has combined capital and surplus of at least $50,000,000, and
shall be a corporation meeting the requirements of Section 310(a) of the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then, for the purposes of this Section 4.1 and to the
extent permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act
under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 60 days after delivery to the
Guarantor of an instrument of resignation, the resigning Guarantee Trustee may
petition, at the expense of the Guarantor, any court of competent jurisdiction
for appointment of a Successor Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to act of
any Successor Guarantee Trustee.
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ARTICLE V
Guarantee
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer Trust may have or
assert, except the defense of payment by the Issuer Trust. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer Trust
to pay such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee Agreement
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Guarantee Trustee,
the Issuer Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under this
Guarantee Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer Trust of any express or implied
agreement, covenant, term or condition relating to the Capital Securities to
be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of all or
any portion of the Distributions (other than an extension of time for payment
of Distributions that results from the extension of any interest payment
period on the Debentures as provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the terms of the
Capital Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital
Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Capital Securities, or
any action on the part of the Issuer Trust granting indulgence or extension
of any kind;
(d) the voluntary or involuntary liquidation, dissolution, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or
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readjustment of debt of, or other similar proceedings affecting, the Issuer
Trust or any of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Capital Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor (other than payment of
the underlying obligation), it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement will
be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee Agreement;
provided, however, that (subject to Section 3.1) the Guarantee Trustee shall
have the right to decline to follow any such direction if the Guarantee Trustee
shall determine that the actions so directed would be unjustly prejudicial to
the Holders not taking part in such direction or if the Guarantee Trustee being
advised by counsel determines that the action or proceeding so directed may not
lawfully be taken; and (iv) any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement
without first instituting a legal proceeding against the Guarantee Trustee, the
Issuer Trust or any other Person.
Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Debentures to Holders as
provided in the Trust Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee
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<PAGE>
Agreement. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of
the obligations of the Issuer Trust with respect to the Capital Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
Covenants and Subordination
Section 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Guarantor.
Section 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with the obligations of the Guarantor under (i) any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by any Issuer Trust (as defined in the Indenture),
(ii) the Indenture and the Securities (as defined therein) issued thereunder;
(iii) the Expense Agreement (as defined in the Trust Agreement) and any similar
expense agreements entered into by the Guarantor in connection with the offering
of Capital Securities (as defined in the Indenture) by any Issuer Trust (as
defined in the Indenture), and (iv) any other security, guarantee or other
agreement or obligation that is expressly stated to rank pari passu with the
obligations of the Guarantor under this Guarantee Agreement or with any
obligation that ranks pari passu with the obligations of the Guarantor under
this Guarantee Agreement.
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ARTICLE VII
Termination
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price (as defined in the Trust
Agreement) of all Capital Securities, (ii) the distribution of Debentures to the
Holders in exchange for all of the Capital Securities or (iii) full payment of
the amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of the Issuer Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder is required to repay any sums paid with respect to
Capital Securities or this Guarantee Agreement.
ARTICLE VIII
Miscellaneous
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its rights or delegate its obligations hereunder, and any purported assignment
or delegation other than in accordance with this provision shall be void.
Section 8.2. Amendments.
Except with respect to any changes that do not adversely affect the rights of
the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Capital Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
Section 8.3. Notices.
Any notice, request or other communication required or permitted to be given
hereunder shall be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
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(a) if given to the Guarantor, to the address or telecopy number set forth
below or such other address or telecopy number as the Guarantor may give notice
to the Guarantee Trustee and the Holders:
Dime Bancorp, Inc.
589 Fifth Avenue
New York, New York 10017
Attention: Secretary
Telecopy No.: (212) 326-6110
(b) if given to the Guarantee Trustee, at the address or telecopy number
set forth below or such other address or telecopy number as the Guarantee
Trustee may give notice to the Guarantor and the Holders:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Corporate Trust Administration
Telecopy No.: (212) 946-8161
with a copy to:
Dime Capital Trust I
c/o Dime Bancorp, Inc.
589 Fifth Avenue
New York, New York 10017
Attention: Secretary
Telecopy No.: (212) 326-6110
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is not
separately transferable from the Capital Securities.
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Section 8.5. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee Agreement shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee Agreement.
Section 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 8.7. Counterparts.
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Guarantee Agreement
as of the day and year first above written.
Dime Bancorp, Inc.
By: /s/ D. James Daras
--------------------------------
Name: D. James Daras
Title: Executive Vice President and
Treasurer
The Chase Manhattan Bank,
as Guarantee Trustee
By: /s/ A.K. Crain
--------------------------------
Name: Andrea Koster-Crain
Title: Vice President
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Exhibit 4.6
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of May 6, 1997,
between Dime Bancorp, Inc., a Delaware corporation (the "Depositor"), and Dime
Capital Trust I, a Delaware business trust (the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire 9.33% Junior Subordinated Deferrable
Interest Debentures, Series A (the "Debentures") from the Depositor and to issue
and sell 9.33% Capital Securities, Series A (the "Capital Securities") with such
powers, preferences and special rights and restrictions as are set forth in the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of May 6,
1997 among the Depositor, as depositor, The Chase Manhattan Bank, as Property
Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, the Administrative
Trustees named therein and the holders from time to time of the Trust
Securities, as the same may be amended from time to time (the "Trust
Agreement"); and
WHEREAS, terms used but not defined herein have the meanings set forth
in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged:
ARTICLE I
SECTION 1.1. Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities of the
Issuer Trust, other than obligations of the Issuer Trust to pay to holders of
any Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Depositor under this Agreement shall
constitute unsecured obligations of the Depositor and shall rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Depositor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Depositor
hereunder. The obligations of the Depositor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Depositor.
SECTION 1.3. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the dissolution of the Issuer Trust, provided,
however, that this
<PAGE>
Agreement shall continue to be effective or shall be reinstated, as the case may
be, if at any time any holder of Capital Securities or any Beneficiary must
restore payment of any sums paid under the Capital Securities, under any
Obligation, under the Guarantee Agreement, dated the date hereof, between the
Depositor and The Chase Manhattan Bank, as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
SECTION 1.4. Waiver of Notice. The Depositor hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Depositor hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Depositor under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the liquidation of the Issuer Trust in accordance
with the terms of the Trust Agreement).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Depositor with respect to the happening of any of the
foregoing.
SECTION 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Depositor and the Depositor waives any right or remedy to
require that any action be brought against the Issuer Trust or any other person
or entity before proceeding against the Depositor.
SECTION 1.7. Subrogation. The Depositor shall be subrogated to all
rights (if any) of the Issuer Trust in respect of any amounts paid to the
Beneficiaries by the Depositor under this Agreement; provided, however, that the
Depositor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
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ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the written consent of the other, and any purported
assignment without such consent shall be void.
SECTION 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Depositor and shall inure to the benefit of the
Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any Beneficiary or any
Capital Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Capital Securities without the consent of such Beneficiary or the holders of the
Capital Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex):
If given to the Depositor:
Dime Bancorp, Inc.
589 Fifth Avenue
New York, New York 10017
Facsimile No.: (212) 326-6170
Attention: Secretary
If given to the Issuer Trust:
Dime Capital Trust I
c/o The Chase Manhattan Bank
450 West 33rd Street, 15th floor
New York, New York 10001
Facsimile No.: (212) 946-8161
Attention: Corporate Trust Administration
SECTION 2.5. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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THIS AGREEMENT is executed as of the day and year first above written.
DIME BANCORP, INC.
By: /s/ D. James Daras
------------------------
Name: D. James Daras
Title: Executive Vice President and
Treasurer
DIME CAPITAL TRUST I
By:/s/ Gene C. Brooks
-------------------------
Name: Gene C. Brooks
Title: Administrative Trustee
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