<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 28, 1999
REGISTRATION NO. 333-78159
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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DIME BANCORP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 589 FIFTH AVENUE 11-3197414
(STATE OR OTHER JURISDICTION OF NEW YORK, NEW YORK 10017 (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) (212) 326-6170 IDENTIFICATION NUMBER)
(ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA
CODE,
OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
</TABLE>
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JAMES E. KELLY, ESQ.
GENERAL COUNSEL
DIME BANCORP, INC.
589 FIFTH AVENUE
NEW YORK, NEW YORK 10017
(212) 326-6170
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH A COPY TO:
MITCHELL S. EITEL, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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Pursuant to Rule 429 under the Securities Act of 1933, the prospectus filed
as part of this Registration Statement also constitutes a prospectus for
Registration Statement No. 333-58253; the $100,000,000 of debt securities
remaining unissued under Registration Statement No. 333-58253 will be combined
with the $200,000,000 aggregate amount of debt securities to be registered
pursuant to this Registration Statement to enable the Registrant to offer an
aggregate amount of $300,000,000 of debt securities pursuant to the combined
prospectus.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION; PRELIMINARY PROSPECTUS DATED MAY 28, 1999
PROSPECTUS
$300,000,000
DIME BANCORP, INC.
DEBT SECURITIES
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We may, from time to time, issue up to $300,000,000 aggregate principal
amount of debt securities. We will provide specific terms of these debt
securities in supplements to this prospectus. You should read this prospectus
and any supplement carefully before you invest.
We may sell these debt securities to or through underwriters, and also to
other purchasers or through agents. The names of any underwriters or agents will
be set forth in an accompanying prospectus supplement.
SEE "RISK FACTORS" BEGINNING ON PAGE 2 FOR INFORMATION YOU SHOULD CONSIDER
BEFORE BUYING THE DEBT SECURITIES.
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The debt securities are not deposits or other obligations of any bank or
savings association and are not insured or guaranteed by the Federal Deposit
Insurance Corporation or any other governmental agency.
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NONE OF THE SECURITIES AND EXCHANGE COMMISSION, THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE OFFICE OF THRIFT SUPERVISION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE DEBT SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1999.
<PAGE> 3
RISK FACTORS
In addition to the information contained elsewhere in this prospectus or
incorporated in this prospectus by reference, you should carefully consider the
following factors before making any final decision. See "Where You Can Find More
Information" to learn where you can obtain additional information.
AN ECONOMIC DOWNTURN MAY LEAD TO LESS DEMAND FOR DIME'S SERVICES AND REDUCE
DIME'S EARNINGS
Our business faces various business risks. In a recession or other economic
downturn, these risks would probably become more acute and might lead to less
demand for our loan production or other services. The volume of our loan
production depends upon demand for the types of loans we produce and the
competition for such loans in the marketplace. Fluctuations in consumer
confidence, real estate values, interest rates and investment returns could
combine to make the types of loans we produce less attractive. In particular, an
increase in long-term interest rates could reduce the volume of loans funded and
sold by us and thereby reduce our earnings. In addition, during recessions and
economic downturns, the number of foreclosures generally increases, which could
lead to a higher number of lawsuits against us.
CHANGES IN INTEREST RATES MAY REDUCE DIME'S NET INCOME
We realize a major part of our income from the differential or "spread"
between the interest we earn on our assets, such as loans and investments, and
the interest we pay on our liabilities, such as deposits and borrowings.
Differences between the maturity and repricing terms of these assets and
liabilities affect the size of the spread. In general, our interest-bearing
liabilities reprice or mature sooner than our interest-earning assets. This
means that higher interest rates may decrease the spread and reduce our net
interest income. If interest rates decline, however, our loans and investments
may, on average, reprice sooner than our deposits or be prepaid earlier than
expected, which may also decrease the spread and lower our net interest income.
In addition, changes in the relationship between long-term and short-term
interest rates (known as the "yield curve") or changes in the relationship
between our funding costs and the return on our loans and other investments can
adversely impact our net interest spread and net interest income.
In addition, we earn a large part of our revenues from mortgage banking
activities, which are also subject to interest rate risk. First, we hold a large
portfolio of mortgage servicing assets. When interest rates fall, borrowers are
more likely to prepay the loans underlying these assets. This leads to lower
future servicing revenues and therefore a decline in the value of these mortgage
servicing assets. Second, we produce mortgage loans and then sell them in the
secondary mortgage market as mortgage-backed securities. In this case, we face
the risk that interest rates may change between the time we produce the loans
and the time we sell the loans as mortgage-backed securities.
We use a variety of techniques to try to reduce our exposure to interest
rate fluctuations, but we cannot eliminate this risk.
YEAR 2000 ISSUE MAY CAUSE COMPUTER-RELATED DISRUPTIONS
Many existing computer programs use only two digits to identify a year in a
data field. These programs were designed and developed without considering the
upcoming end of the century. If not corrected, many computer applications could
fail or create erroneous results by or at the Year 2000 or possibly earlier. The
Year 2000 issue affects us because the financial services industry depends
heavily on computer applications in a variety of ways, including the following:
- We rely on computer systems in almost all aspects of our business,
including the processing of deposits, loans and other services and
products offered to customers as well as for environmental issues such as
heating, ventilation and air conditioning in buildings where we conduct
our business, and the failure of these computer systems could cause
disruptions and failures with respect to the products and services we
offer.
- Other banks, clearinghouses and vendors whose products and services we
use are at risk of disruptions and failures in the event that they have
not adequately addressed their Year 2000 issues.
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- The creditworthiness of borrowers and the stability of The Dime Savings
Bank of New York, FSB's deposits might be diminished by disruptions of
the businesses of its customers as a result of their own or others'
failure to address adequately the Year 2000 issue.
- Federal banking agencies have issued guidance on the business-wide risk
posed to financial institutions by the Year 2000 problem. These agencies
may take supervisory actions against financial institutions that fail to
address Year 2000 issues appropriately.
In order to address the Year 2000 issues facing us, our management
initiated a program to prepare our computer systems and applications for the
Year 2000. We have completed the process of assessing and analyzing the systems
issues associated with the Year 2000 problem and have adopted a plan to modify
or replace certain existing systems or software. We have successfully completed
the conversion of substantially all of our internal mission-critical systems. As
a result, substantially all of our internal mission-critical systems are now
Year 2000 capable. We are continuing post-conversion testing of our internal
mission-critical systems and conducting interface testing with mission-critical
and other material third parties.
We have also established remediation contingency plans and business
resumption contingency plans for our mission-critical systems. These contingency
plans focus on mitigating (i) the risks associated with the failure to remediate
our internal mission-critical systems prior to the Year 2000 and (ii) the
operational risks to us and our customers should our core business processes
fail, regardless of whether our internal mission-critical systems are remediated
by the Year 2000.
Further, we are communicating with important vendors and service providers
to evaluate their readiness to meet the Year 2000 challenge and determine our
exposure if they fail to address the problem.
Finally, we have implemented a process of ongoing credit risk assessment
and monitoring of our significant commercial banking customers in an effort to
prepare for any Year 2000-related risk that may adversely affect us.
Through March 31, 1999, we spent approximately $21 million in connection
with our Year 2000 program. We do not anticipate incurring any significant
additional expense in completing this program. The total cost estimate reflects
consulting fees associated with software modification, project management and
programming, but does not reflect the costs of having our personnel spend time
on Year 2000 issues or capital expenditures on systems that would have been made
regardless of Year 2000 issues.
We cannot guarantee that our efforts will be accomplished in a timely
manner or that our failure or the failure of material third parties to do so
will not have a material adverse effect on us.
DIME IS EXTENSIVELY REGULATED
Our operations are subject to extensive regulation by federal, state and
local governmental authorities and are subject to various laws and judicial and
administrative decisions imposing requirements and restrictions on us. Policies
adopted by these entities can affect our business operations and the
availability, growth and distribution of our investments, borrowings and
deposits. In addition, federal authorities periodically conduct examinations of
us and Dime Savings Bank and may impose various requirements or sanctions.
Most of our cash flow comes from dividends and other capital distributions
paid to us by Dime Savings Bank, and our ability to make payments on our
securities (including those to be offered pursuant to this prospectus and any
accompanying prospectus supplement) is therefore dependent upon our ability to
receive these distributions. Certain statutes and regulations restrict Dime
Savings Bank's ability to pay dividends or make other distributions on its
capital stock or otherwise and thus limit the transfer of funds to us.
LEGISLATIVE AND REGULATORY PROPOSALS MAY UNFAVORABLY AFFECT DIME
Proposals to change the laws governing financial institutions are
frequently raised in Congress and before bank regulatory authorities. Changes in
applicable laws or policies could materially affect our business, and the
likelihood of any major changes in the future and their effects are impossible
to determine. Moreover, it is impossible to predict the ultimate form any
proposed legislation might take or how it might affect us.
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INTENSE COMPETITION EXISTS FOR LOANS AND DEPOSITS
Competition among financial institutions in attracting and retaining
deposits and making loans is intense. Traditionally, Dime Savings Bank has faced
competition for deposits from other thrifts and commercial banks in the greater
New York metropolitan area. However, in recent years "nonbank" investment
alternatives such as money market mutual funds and corporate and governmental
debt securities, have become significant competitors for available funds. Dime
Savings Bank competes for loans with other thrift institutions, commercial
banks, mortgage banking companies, consumer finance companies, insurance
companies and other institutional investors and lenders. Many of the
institutions that Dime Savings Bank competes with for deposits and loans are
substantially larger than Dime Savings Bank.
FORWARD-LOOKING STATEMENTS
This prospectus, any applicable prospectus supplement and the documents
incorporated by reference into this prospectus or such prospectus supplement
include forward-looking statements. We have based these forward-looking
statements on our current expectations and projections about future events.
These forward-looking statements are subject to risks, uncertainties and
assumptions about us, including, among other things:
- interest rate movements;
- competition from both financial and non-financial institutions;
- changes in applicable laws and regulations;
- the timing and occurrence (or non-occurrence) of transactions and events
that may be subject to circumstances beyond our control; and
- general economic conditions.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties, and assumptions, the forward-looking
events discussed in this prospectus, any applicable prospectus supplement and
the documents incorporated by reference into this prospectus and such prospectus
supplement might not occur.
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THE COMPANY
DIME AND DIME SAVINGS BANK
We were incorporated under the laws of the State of Delaware in 1994. Our
principal executive office is located at 589 Fifth Avenue, New York, New York
10017. Our telephone number is (212) 326-6170. We are the holding company for
Dime Savings Bank. Dime Savings Bank was organized in 1859, converted from a
state charter to a federal charter in 1983 and converted to stock ownership in
1986. Headquartered in New York City, Dime Savings Bank currently operates 89
branches in the greater New York metropolitan area. Through Dime Savings Bank
and its subsidiaries, we also provide mortgage banking and selected consumer
financial services throughout the United States. At March 31, 1999, we had
consolidated total assets of $21.6 billion, deposits of $13.2 billion and
stockholders' equity of $1.4 billion.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth certain information regarding our
consolidated ratios of earnings to fixed charges.
<TABLE>
<CAPTION>
3 MONTHS YEAR
ENDED ENDED
MARCH 31, DECEMBER 31,
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1999 1998 1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C> <C> <C>
Excluding interest on
deposits 2.06x 1.83x 1.98x 1.57x 1.42x 1.26x 1.22x
Including interest on
deposits 1.45 1.35 1.39 1.22 1.17 1.12 1.09
</TABLE>
For purposes of computing these ratios, earnings represent income before
income taxes, extraordinary items and cumulative effect of a change in
accounting principle, plus fixed charges. Fixed charges, excluding interest on
deposits, represent interest expense (other than interest on deposits),
one-third (the proportion that represents the interest factor) of rent expense
and all amortization of debt issuance costs. Fixed charges, including interest
on deposits, represent all interest expense, one-third (the proportion that
represents the interest factor) of rent expense and all amortization of debt
issuance costs.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the debt securities for
general corporate purposes, including working capital, capital expenditures,
investments in or loans to our subsidiaries, refinancing of debt, including
outstanding commercial paper and other short-term indebtedness, if any,
redemption or repurchase of shares of our outstanding common stock, funding of
possible business combinations, the satisfaction of other obligations, or for
such other purposes as may be specified in the applicable prospectus supplement.
We continually evaluate possible business combination opportunities. As a
result, future business combinations involving cash, debt or equity securities
may occur. Any future business combination or series of business combinations
that we might undertake may be material, in terms of assets acquired,
liabilities assumed or otherwise, to our financial condition.
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CERTAIN REGULATORY CONSIDERATIONS
As a savings and loan holding company, we are subject to supervision by the
Office of Thrift Supervision (the "OTS"). Dime Savings Bank is a federally
chartered savings bank subject to comprehensive regulation, examination and
supervision by the OTS, as the primary federal regulator of savings
associations, and by the Federal Deposit Insurance Corporation (the "FDIC"), as
the administrator of the federal deposit insurance funds. A portion of Dime
Savings Bank's deposits is insured by the Savings Association Insurance Fund,
and a portion is insured by the Bank Insurance Fund. Dime Savings Bank is
required to file reports with the OTS and the FDIC concerning its activities and
financial condition. Dime Savings Bank is a member of the Federal Home Loan Bank
of New York and is subject to certain limited regulation by the Board of
Governors of the Federal Reserve System.
This section briefly describes some of the key statutory provisions and
regulations applicable to us and Dime Savings Bank. This section does not
contain a complete description of all the statutes and regulations affecting our
business. The regulatory scheme has been established primarily for the
protection of depositors and the financial system generally and is not intended
for the protection of stockholders or other creditors.
As a holding company, our ability to make payments on our securities
(including those offered pursuant to this prospectus and any accompanying
prospectus supplement) is largely dependent on our ability to receive dividends
and other funds from Dime Savings Bank. In addition, our ability to make
payments on our securities (including those offered pursuant to this prospectus
and any accompanying prospectus supplement) is also affected by statutes and
regulations relating to the business of federal savings associations that have
the effect of limiting transfers of funds from Dime Savings Bank to us. The
nature and extent of these restrictions depend upon Dime Savings Bank's level of
regulatory capital and its income.
REGULATORY CAPITAL REQUIREMENTS
Under federal statute and OTS regulations, savings associations are
required to comply with three separate capital adequacy standards. These
institutions are required to have "core capital" equal to at least 3% of
adjusted total assets, "tangible capital" equal to at least 1.5% of adjusted
total assets and "total risk-based capital" equal to at least 8% of
risk-weighted assets.
"Core capital" includes common stockholders' equity (including common
stock, common stock surplus and retained earnings, but excluding any unrealized
gains or losses, net of related taxes, on certain securities available for
sale), noncumulative perpetual preferred stock and any related surplus and
minority interests in the equity accounts of fully consolidated subsidiaries.
Intangible assets, other than servicing assets valued in accordance with
applicable regulations and purchased credit card relationships, generally must
be deducted from core capital. Servicing assets and purchased credit card
relationships may together represent up to 100% of core capital, although the
amount of purchased credit card relationships and non-mortgage-related servicing
assets included in core capital may not together exceed 25% of core capital.
"Tangible capital" means core capital less any intangible assets (except
for mortgage servicing assets includable in core capital) and investments in
subsidiaries that are not "includable subsidiaries" (except as permitted by
regulation).
For purposes of the risk-based capital requirement, "total risk-based
capital" means core capital plus supplementary capital, so long as the amount of
supplementary capital that is used to satisfy the requirement does not exceed
the amount of core capital. "Supplementary capital" includes, among other
things, subordinated debt issued pursuant to OTS regulations, general valuation
loan and lease loss allowances up to a maximum of 1.25% of risk-weighted assets
and up to 45% of unrealized gains on certain securities available for sale.
Risk-weighted assets are determined by multiplying certain categories of the
savings association's assets, including off-balance sheet equivalents, by an
assigned risk weight of 0% to 100% based on the credit risk associated with
those assets as specified in OTS regulations.
As of March 31, 1999, Dime Savings Bank had core capital and tangible
capital of $1.3 billion, which was equal to 6.17% of adjusted total assets, and
total risk-based capital of $1.4 billion, which was equal to 10.91% of
risk-weighted assets,
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and exceeded the capital requirements imposed by the OTS.
In 1991, Congress enacted the "prompt corrective action" provisions of the
Federal Deposit Insurance Act, which established five capital-based categories
for depository institutions insured by the FDIC: "well capitalized," "adequately
capitalized," "undercapitalized," "significantly undercapitalized," and
"critically undercapitalized." The OTS must take certain mandatory action and
may take other discretionary action with respect to savings associations in the
three undercapitalized categories. Under OTS regulations, an institution is
treated as well capitalized if its ratio of total risk-based capital to
risk-weighted assets is 10% or more, its ratio of core capital to risk-weighted
assets is 6% or more, its ratio of core capital to adjusted total assets is 5%
or more and it is not subject to any order or directive by the OTS to meet a
specific capital level. At March 31, 1999, Dime Savings Bank continued to
satisfy the published standards for a well capitalized institution.
LIMITATIONS ON CAPITAL DISTRIBUTIONS
Savings associations such as Dime Savings Bank may not make capital
distributions (or pay management fees to their holding companies) if, following
the distribution, they would be "undercapitalized" as described above. In
addition, OTS regulations limit a savings association's ability to pay dividends
and make other capital distributions. For this purpose, "capital distributions"
include, among other things, cash dividends, payments to repurchase, redeem,
retire or otherwise acquire the savings association's shares or debt instruments
included in total capital, payments of cash or other property to the savings
association's owners or affiliates made in connection with a corporate
restructuring, payments to stockholders of another institution in a cash-out
merger, other distributions charged against capital if the savings association
would not be "well capitalized" following the distribution or any other
transaction the OTS determines to be a distribution of capital. To the extent
that the OTS regulations described below and the prompt corrective action
provisions are inconsistent, the prompt corrective action provisions control.
Under current OTS regulations, a savings association is required to file an
application with the OTS for approval to make a capital distribution if: (i) it
is not eligible for expedited treatment under the OTS application processing
rules; (ii) the total amount of all capital distributions, including the
proposed capital distribution, for the applicable calendar year would exceed an
amount equal to the savings association's net income for that year to date plus
the savings association's retained net income for the preceding two years; (iii)
the savings association would not be adequately capitalized under the OTS
capital regulation following the distribution; or (iv) the capital distribution
would violate a statute, regulation or agreement with the OTS or a condition
imposed by the OTS. A savings association that is not required to file an
application may be required to file a notice with the OTS under certain
conditions, including if it is a subsidiary of a holding company. The OTS may
disapprove an application or notice if the proposed capital distribution would:
(i) make the association undercapitalized, significantly undercapitalized or
critically undercapitalized; (ii) raise safety or soundness concerns; or (iii)
violate a statute, regulation or agreement with the OTS (or with the FDIC), or a
condition imposed in an OTS-approved application or notice.
TRANSACTIONS WITH AFFILIATES
Under federal law and regulation, transactions between a savings
association and its "affiliates," such as its holding company and other
companies controlled by its holding company, are subject to quantitative and
qualitative restrictions. Savings associations are restricted in their ability
to engage in certain types of transactions with their affiliates, including
transactions that could provide funds to a holding company for the payment of
capital distributions.
These "covered transactions" generally include:
- lending or extending credit to an affiliate;
- purchasing assets from an affiliate;
- accepting securities issued by an affiliate as collateral for a loan or
extension of credit; and
- issuing a guarantee, acceptance or letter of credit on behalf of an
affiliate.
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Covered transactions are permitted between a savings association and single
affiliate up to 10% of the capital stock and surplus of the association, and
between a savings association and all of its affiliates together up to 20% of
the capital stock and surplus of the association. The purchase of low-quality
assets by a savings association from an affiliate is not permitted. Each loan or
extension of credit to an affiliate by a savings association must be secured by
collateral with a market value ranging from 100% to 130% (depending on the type
of collateral) of the amount of credit extended. A savings association is not
permitted, however, to make a loan or extension of credit to any affiliate
unless the affiliate is engaged only in activities that the Federal Reserve
Board has determined to be permissible for bank holding companies. Savings
associations also are prohibited from purchasing or investing in securities
issued by an affiliate, other than shares of a subsidiary.
Covered transactions between a savings association and an affiliate, and
certain other transactions with or benefitting an affiliate, must be on terms
and conditions at least as favorable to the association as those prevailing at
the time for comparable transactions with non-affiliated companies. This
arm's-length requirement applies to all covered transactions, as well as to:
- the sale of securities or other assets to an affiliate;
- the payment of money or the furnishing of services to an affiliate;
- any transaction in which an affiliate acts as agent or broker or receives
a fee for its services to the savings association or to any other person;
or
- any transaction or series of transactions with a third party if any
affiliate has a financial interest in the third party or is a participant
in the transaction or series of transactions.
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DESCRIPTION OF DEBT SECURITIES WE MAY OFFER
As required by Federal law for all bonds and notes of companies that are
publicly offered, the debt securities are governed by documents called
"indentures." The indenture is a contract between us and the trustee named in
the applicable prospectus supplement, which acts as trustee for the debt
securities. There may be more than one trustee under each indenture for
different series of debt securities. The trustee has two main roles. First, the
trustee can enforce your rights against us if we default. There are some
limitations on the extent to which the trustee acts on your behalf, described
later on page 17 under "Remedies If an Event of Default Occurs." Second, the
trustee performs administrative duties for us, such as sending you interest
payments, transferring your debt securities to a new buyer if you sell, and
sending you notices.
The indenture and its associated documents contain the full legal text of
the matters described in this section. The indenture and the debt securities are
governed by New York law.
We may issue either senior debt securities or subordinated debt securities.
The senior and subordinated debt securities are issued under different
indentures and may have different trustees. The forms of subordinated indenture
and senior indenture are exhibits to the registration statement of which this
prospectus is a part. See "Where You Can Find More Information" on page 20 for
information on how to obtain a copy. When we refer to the indenture we mean both
the senior indenture and the subordinated indenture unless we indicate
otherwise. When we refer to the trustee we mean both the senior trustee and the
subordinated trustee unless we indicate otherwise.
We may issue as many distinct series of debt securities under each
indenture as we wish. This section summarizes terms of the debt securities that
are common to all series. Because this section is a summary, it does not
describe every aspect of the debt securities. This summary is subject to, and
qualified in its entirety by, reference to all the provisions of the indenture,
including definitions of certain terms used in the indenture. We describe the
meaning for only the more important terms. We also include references in
parentheses to certain sections of the indenture. Whenever we refer to
particular sections or defined terms of the indenture in this prospectus or in a
prospectus supplement, those sections or defined terms are incorporated by
reference here or in the prospectus supplement.
Certain material specific financial, legal and other terms of the debt
securities particular to your series will be described in the prospectus
supplement relating to your series. The prospectus supplement relating to your
series of debt securities will describe the following terms of your series:
- the title of your series of debt securities;
- any limit on the aggregate principal amount of your series of debt
securities;
- the date or dates on which your series of debt securities will mature;
- the annual rate or rates (which may be fixed or variable) at which your
series of debt securities will bear interest, if any, and the date or
dates from which the interest, if any, will accrue;
- the dates on which interest, if any, on your series of debt securities
will be payable and the regular record dates for those interest payment
dates;
- any mandatory or optional sinking funds or analogous provisions or
provisions for redemption at your option;
- the date, if any, after which and the price or prices at which your
series of debt securities may, in accordance with any option or mandatory
redemption provisions, be redeemed and the other detailed terms and
provisions of any such optional or mandatory redemption provision;
- if other than denominations of $1,000 and any integral multiple thereof,
the denomination in which your series of debt securities will be
issuable;
- if other than the principal amount thereof, the portion of the principal
amount of your series of debt securities which will be payable upon the
declaration of acceleration of the maturity of those debt securities;
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- the currency of payment of principal, premium, if any, and interest on
your series of debt securities;
- any index or formula used to determine the amount of payment of principal
of, premium, if any, and interest on your series of debt securities;
- the applicability of the provisions described under "Defeasance" on page
15;
- whether any debt securities will be issued in the form of a global
security, the wording of any legal legend to be placed on any global
security in addition to or instead of a legend describing the
restrictions on exchanges and transfers listed under "Global Securities"
on this page and, if different from those described in that subsection,
any circumstances under which a global security may be exchanged for debt
securities registered in the names of persons other than the depositary
for the global security or its nominee;
- whether your series of debt securities are subordinated debt securities
or senior debt securities;
- if your series of debt securities are subordinated debt securities,
whether the subordination provisions summarized below or different
subordination provisions will apply; and
- any other material terms of your series of debt securities.
Those terms may vary from the terms described here. Thus, this summary also
is subject to and qualified by reference to the description of the particular
terms of your series to be described in the prospectus supplement. The
prospectus supplement relating to your series of debt securities will be
attached to the front of this prospectus.
LEGAL OWNERSHIP
"STREET NAME" AND OTHER INDIRECT HOLDERS
Investors who hold debt securities in accounts at banks or brokers will
generally not be recognized by us as legal holders of debt securities. This is
called holding in "street name." Instead, we would recognize only the bank or
broker or the financial institution the bank or broker uses to hold its debt
securities. These intermediary banks, brokers and other financial institutions
pass along principal, interest and other payments on the debt securities, either
because they agree to do so in their customer agreements or because they are
legally required to do so. If you hold debt securities in "street name," you
should check with your own bank or broker to find out:
- How it handles debt securities payments and notices;
- Whether it imposes fees or charges;
- How it would handle voting if ever required;
- Whether and how you can instruct it to send you debt securities
registered in your own name so you can be a direct holder as described
below; and
- How it would pursue rights under the debt securities if there were a
default or other event triggering the need for holders to act to protect
their interests.
DIRECT HOLDERS
Our obligations, as well as the obligations of the trustee and those of any
third parties employed by us or the trustee, run only to persons or entities who
are the direct holders of debt securities; i.e., those who are registered as
holders of debt securities. As noted above, we do not have obligations to you if
you hold in "street name" or through other indirect means, either because you
choose to hold debt securities in that manner or because the debt securities are
issued in the form of "global securities" as described below. For example, once
we make a payment to the registered holder, we have no further responsibility
for the payment even if that registered holder is legally required to pass the
payment along to you as a "street name" customer but does not do so.
GLOBAL SECURITIES
What is a Global Security? A "global security" is a special type of
indirectly held security, as described above under " 'Street Name' and Other
Indirect Holders." If we choose to issue debt securities in the form of global
securities, the ultimate beneficial owners can only be indirect holders. We do
this by requiring that the global security be registered in the name of a
financial
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institution we select and by requiring that the debt securities included in the
global security not be transferred to the name of any other direct holder unless
the special circumstances described below occur. The financial institution that
acts as the sole direct holder of the global security is called the
"depositary." Any person wishing to own a debt security must do so indirectly by
virtue of an account with a broker, bank or other financial institution that in
turn has an account with the depositary. The prospectus supplement will indicate
whether your series of debt securities will be issued in the form of global
securities.
Special Investor Considerations for Global Securities. As an indirect
holder, an investor's rights relating to a global security will be governed by
the account rules of the investor's financial institution and of the depositary,
as well as general laws relating to securities transfers. We do not recognize
this type of investor as a registered holder of debt securities and instead deal
only with the depositary that holds the global security.
An investor should be aware that if debt securities are issued in the form
of global securities:
- The investor cannot get debt securities registered in his or her own
name;
- The investor cannot receive physical certificates for his or her interest
in the debt securities;
- The investor will be a "street name" holder and must look to his or her
own bank or broker for payments on the debt securities and protection of
his or her legal rights relating to the debt securities. See " 'Street
Name' and Other Indirect Holders" on page 10;
- The investor may not be able to sell interests in the debt securities to
some insurance companies and other institutions that are required by law
to own their securities in the form of physical certificates; and
- The depositary's policies will govern payments, transfers, exchange and
other matters relating to the investor's interest in the global security.
We and the trustee have no responsibility for any aspect of the
depositary's actions or for its records of ownership interests in the
global security. We and the trustee also do not supervise the depositary
in any way.
Special Situations When Global Security Will Be Terminated. In a few
special situations described later, the global security will terminate and
interests in it will be exchanged for physical certificates representing debt
securities. After that exchange, the choice of whether to hold debt securities
directly or in "street name" will be up to the investor. Investors must consult
their own banks or brokers to find out how to have their interests in debt
securities transferred to their own name, so that they will be direct holders.
The rights of "street name" investors and direct holders in the debt securities
have been previously described in the subsections entitled " 'Street Name' and
Other Indirect Holders" on page 10 and "Direct Holders" on page 10.
The special situations for termination of a global security are:
- When the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary;
- When we notify the trustee that we wish to terminate the global security;
or
- When an "event of default" on the debt securities has occurred and has
not been cured. (Defaults are discussed later under "Events of Default"
on page 16.)
The prospectus supplement may also list additional situations for terminating a
global security that would apply only to the particular series of debt
securities covered by the prospectus supplement. When a global security
terminates, the depositary (and not us or the trustee) is responsible for
deciding the names of the institutions that will be the initial direct holders.
(Sections 204 and 305)
IN THE REMAINDER OF THIS DESCRIPTION, "YOU" MEANS DIRECT HOLDERS AND NOT
"STREET NAME" OR OTHER INDIRECT HOLDERS OF DEBT SECURITIES. INDIRECT
HOLDERS SHOULD READ THE PREVIOUS SUBSECTION ON PAGE 10 ENTITLED " 'STREET
NAME' AND OTHER INDIRECT HOLDERS."
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OVERVIEW OF REMAINDER OF THIS DESCRIPTION
The remainder of this description summarizes:
- ADDITIONAL MECHANICS relevant to the debt securities under normal
circumstances, such as how you transfer ownership and where we make
payments;
- Your rights under several SPECIAL SITUATIONS, such as if we merge with
another company or if we want to change a term of the debt securities;
- Promises we make to you about how we will run our business or business
actions we promise not to take (known as "RESTRICTIVE COVENANTS"); and
- Your rights if we DEFAULT or experience other financial difficulties.
ADDITIONAL MECHANICS
FORM, EXCHANGE AND TRANSFER
The debt securities will be issued:
- only in fully registered form;
- without interest coupons; and
- unless otherwise indicated in the prospectus supplement, in denominations
that are even multiples of $1,000. (Section 302)
You may have your debt securities broken into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed. (Section
305) This is called an "exchange."
You may exchange or transfer debt securities at the office of the trustee.
The trustee acts as our agent for registering debt securities in the names of
holders and transferring debt securities. We may appoint another entity or
perform this role ourselves. The entity performing the role of maintaining the
list of registered direct holders is called the "security registrar." It will
also perform transfers. (Section 305)
You will not be required to pay a service charge to transfer or exchange
debt securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The transfer or
exchange will only be made if the security registrar is satisfied with your
proof of ownership.
If we designate a securities registrar, it will be named in the prospectus
supplement. We may cancel the designation of any particular securities
registrar. We may also approve a change in the office through which any security
registrar acts. (Section 1002)
If the debt securities are redeemable and we redeem less than all of the
debt securities of a particular series, we may block the transfer or exchange of
those debt securities during the period beginning 15 days before the day we mail
the notice of redemption and ending on the day of that mailing, in order to
freeze the list of holders to prepare the mailing. We may also refuse to
register transfers or exchanges of debt securities selected for redemption,
except that we will continue to permit transfers and exchanges of the unredeemed
portion of any debt security being partially redeemed. (Section 305)
PAYMENT AND PAYING AGENTS
We will pay interest to you if you are a direct holder listed in the
trustee's records at the close of business on a particular day in advance of
each due date for interest, even if you no longer own the debt security on the
interest due date. That particular day, usually about two weeks in advance of
the interest due date, is called the "regular record date" and will be stated in
the prospectus supplement. (Section 307) Holders buying and selling debt
securities must work out between them how to compensate for the fact that we
will pay all the interest for an interest period to the one who is the
registered holder on the regular record date. The most common manner is to
adjust the sales price of the debt securities to pro rate interest fairly
between buyer and seller. This pro rated interest amount is called "accrued
interest."
We will pay interest, principal and any other money due on the debt
securities at the corporate trust office of the trustee in New York City. You
must make arrangements to have your payments picked up at or wired from that
office. We may also choose to pay interest by mailing checks.
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"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS.
We may also arrange for additional payment offices, and may cancel or
change these offices, including our use of the trustee's corporate trust office.
These offices are called "paying agents." We may also choose to act as our own
paying agent. We must notify you of changes in the paying agents for any
particular series of debt securities. (Section 1002)
NOTICES
We and the trustee will send notices regarding the debt securities only to
direct holders, using their addresses as listed in the trustee's records.
(Sections 101 and 106)
Regardless of who acts as paying agent, all money paid by us to a paying
agent that remains unclaimed at the end of two years after the amount is due to
direct holders will be repaid to us. After that two-year period, you may look
only to us for payment and not to the trustee, any other paying agent or anyone
else. (Section 1003)
SPECIAL SITUATIONS
MERGERS AND SIMILAR EVENTS
We are generally permitted to consolidate or merge with another entity. We
are also permitted to sell or lease substantially all of our assets to another
company, or to buy or lease substantially all of the assets of another entity.
However, we may not take any of these actions unless the following conditions
(among others) are met:
- Where we merge out of existence or sell or lease substantially all our
assets, the other entity must be a corporation, partnership or trust
organized under the laws of a State or the District of Columbia or under
federal law, and it must agree to be legally responsible for the debt
securities.
- The merger, sale of assets or other transaction must not cause a default
on the debt securities, and we must not already be in default (unless the
merger or other transaction would cure the default). For purposes of this
no-default test, a default would include an event of default, as
described on page 16, that has occurred and not been cured. A default for
this purpose would also include any event that would be an event of
default if the requirements for giving us notice of our default or our
default having to exist for a specific period of time were disregarded.
(Section 801)
MODIFICATION AND WAIVER
There are three types of changes we can make to the indentures and the debt
securities.
Changes Requiring Your Approval. First, there are changes that cannot be
made to your debt securities without your specific approval. Following is a list
of those types of changes:
- change the payment due date of the principal or interest on a debt
security;
- reduce any amounts due on a debt security;
- reduce the amount of principal payable upon acceleration of the maturity
of a debt security following a default;
- change the place or currency of payment on a debt security;
- impair your right to sue for payment;
- if your debt securities are subordinated debt securities, modify the
subordination provisions in a manner that is adverse to you;
- reduce the percentage of direct holders of debt securities whose consent
is needed to modify or amend the indenture;
- reduce the percentage of direct holders of debt securities whose consent
is needed to waive compliance with certain provisions of the indenture or
to waive certain defaults; and
- modify any other aspect of the provisions dealing with modification and
waiver of the indenture. (Section 902)
Changes Requiring a Majority Vote. The second type of change to the
indentures and the debt securities is the kind that requires a vote in favor by
direct holders of debt securities owning a majority of the principal amount of
the particular
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series affected. The same majority vote would be required for us to obtain a
waiver of all or part of the restrictive covenants described later on page 14,
or a waiver of a past default. However, we cannot obtain a waiver of a payment
default or any other aspect of the indenture or the debt securities listed in
the first category described previously on page 13 under "Changes Requiring Your
Approval" unless we obtain your individual consent to the waiver. (Section 513)
Changes Not Requiring Approval. The third type of change does not require
any vote by direct holders of debt securities. This type is limited to
clarifications and certain other changes that would not adversely affect holders
of the debt securities. (Section 901)
Further Details Concerning Voting. When taking a vote, we will use the
following rules to decide how much principal amount to attribute to a debt
security:
- For original issue discount securities, we will use the principal amount
that would be due and payable on the voting date if the maturity of the
debt securities were accelerated to that date because of a default;
- For debt securities whose principal amount is not known (for example,
because it is based on an index), we will use a special rule for that
debt security described in the prospectus supplement; and
- For debt securities denominated in one or more foreign currencies or
currency units, we will use the U.S. dollar equivalent.
Debt securities will not be considered outstanding, and the holders will
therefore not be eligible to vote, if we have deposited or set aside in trust
for the holders money for their payment or redemption. (Section 101) Holders of
debt securities will also not be eligible to vote if the debt securities have
been fully defeased as described later on page 15 under "Full Defeasance."
(Section 101)
We will generally be entitled to set any day as a record date for the
purpose of determining the direct holders of outstanding debt securities that
are entitled to vote or take other action under the indenture. (Section 301) In
certain limited circumstances, the trustee will be entitled to set a record date
for action by direct holders. If we or the trustee set a record date for a vote
or other action to be taken by direct holders of a particular series, that vote
or action may be taken only by persons who are holders of outstanding debt
securities of that series on the record date and must be taken within 180 days
following the record date or a shorter period that we may specify (or as the
trustee may specify, if it set the record date). We may shorten or lengthen (but
not beyond 180 days) this period from time to time. (Section 104)
"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW APPROVAL MAY BE GRANTED OR DENIED IF WE
SEEK TO CHANGE THE INDENTURE OR THE DEBT SECURITIES OR REQUEST A WAIVER.
RESTRICTIVE COVENANTS
THE SENIOR INDENTURE LIMITS HOW WE MAY DISPOSE OF VOTING STOCK OF OUR PRINCIPAL
SUBSIDIARY BANK
Under the senior indenture, we cannot assign, sell, grant a security
interest in or otherwise dispose of any shares or rights to obtain shares with
general voting power (other than directors' qualifying shares) of any principal
subsidiary bank. A "principal subsidiary bank" is a bank subsidiary that has
total assets equal to 30% or more of our assets. Currently, our only principal
subsidiary bank is Dime Savings Bank. Also, we may not permit a principal
subsidiary bank to issue any shares or rights to obtain shares with general
voting power of that bank except for transactions that are:
- for fair market value on the date of action and, after the transaction,
we own at least 80% of the shares of issued voting stock of the principal
subsidiary bank;
- required by a court or regulatory authority as a condition of permitting
certain acquisitions by us;
- made where the principal subsidiary bank unconditionally guarantees
payment on the debt securities; or
- made to us or any of our wholly-owned subsidiaries if the subsidiary
agrees to be bound by this covenant and we agree to
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maintain that subsidiary as a wholly-owned subsidiary.
A principal subsidiary bank may generally merge into or consolidate with
another banking institution if, after the transaction, we or any of our
wholly-owned subsidiaries own at least 80% of the issued voting stock of the
other banking institution clear of any security interest and there is no event
of default if the resulting banking institution is treated as a principal
subsidiary bank.
The subordinated indenture does not contain this limitation, and these
limits are not intended for the benefit of the subordinated debt securities.
DEFEASANCE
The following discussion of "full defeasance" and "covenant defeasance"
will be applicable to your series of debt securities only if we choose to have
them apply to that series. If we do so choose, we will state that in the
prospectus supplement. (Section 1301)
Full Defeasance. If there is a change in federal tax law, as described
below, we can legally release ourselves from any payment or other obligations on
the debt securities (called "full defeasance") if the following things happen:
- We must irrevocably deposit in trust for your benefit and the benefit of
all other direct holders of the debt securities a combination of money
and U.S. government or U.S. government agency notes or bonds that will
generate enough cash to make interest, principal and any other payments
on the debt securities on their various due dates.
- There must be a change in current federal tax law or an IRS ruling that
lets us make the above deposit without causing you to be taxed on the
debt securities any differently than if we did not make the deposit and
just repaid the debt securities ourselves. (Under current federal tax
law, the deposit and our legal release from the debt securities would be
treated as though we took back your debt securities and gave you your
share of the cash and notes or bonds deposited in trust. In that event,
you could recognize gain or loss on the debt securities you give back to
us.)
- We must deliver to the trustee a legal opinion of our counsel confirming
the tax law change described above. (Sections 1302 and 1304)
If we ever did accomplish full defeasance, as described above, you would
have to rely solely on the trust deposit for repayment of the debt securities.
You could not look to us for repayment in the unlikely event of any shortfall.
Conversely, the trust deposit would most likely be protected from claims of our
lenders and other creditors if we ever became bankrupt or insolvent. In the case
of subordinated debt securities, you would also be released from the
subordination provisions on the subordinated debt securities described later
under "Subordination of the Subordinated Debt Securities" on page 17.
Covenant Defeasance. Under current federal tax law, we can make the same
type of deposit described above and be released from some of the restrictive
covenants in the debt securities. This is called "covenant defeasance." In that
event, you would lose the protection of those restrictive covenants but would
gain the protection of having money and securities set aside in trust to repay
the debt securities and, in the case of subordinated debt securities, you would
be released from the subordination provisions on the subordinated debt
securities described later on page 17. In order to achieve covenant defeasance,
we must do the following:
- Deposit in trust for your benefit and the benefit of all other direct
holders of the debt securities a combination of money and U.S. government
or U.S. government agency notes or bonds that will generate enough cash
to make interest, principal and any other payments on the debt securities
on their various due dates.
- Deliver to the trustee a legal opinion of our counsel confirming that
under current federal income tax law we may make the above deposit
without causing you to be taxed on the debt securities any differently
than if we did not make the deposit and just repaid the debt securities
ourselves.
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If we accomplish covenant defeasance, the following provisions (among
others) of the indenture and the debt securities would no longer apply:
- Our promises regarding disposition of the stock of Dime Savings Bank is
previously described on page 14 under "The Senior Indenture Limits How We
May Dispose of Voting Stock of Our Principal Subsidiary Bank," and any
other covenants applicable to the series of debt securities and described
in the prospectus supplement;
- The events of default relating to breach of covenants and acceleration of
the maturity of other debt, described later on this page under "Events of
Default"; and
- In the case of subordinated debt securities, the subordination provisions
on the subordinated debt securities described later on page 17 under
"Subordination of Subordinated Debt Securities."
If we accomplish covenant defeasance, you can still look to us for
repayment of the debt securities if there were a shortfall in the trust deposit.
In fact, if one of the remaining events of default occurred (such as our
bankruptcy) and the debt securities become immediately due and payable, there
may be such a shortfall. Depending on the event causing the default, you may not
be able to obtain payment of the shortfall. (Sections 1303 and 1304)
DEFAULT AND RELATED MATTERS
RANKING
The debt securities are not secured by any of our property or assets.
Accordingly, your ownership of debt securities means you are one of our
unsecured creditors. The senior debt securities are not subordinated to any of
our other debt obligations, and therefore they rank equally with all our other
unsecured and unsubordinated indebtedness. The subordinated debt securities are
subordinated to some of our existing and future debt and other liabilities. See
"Subordination of Subordinated Debt Securities" on page 17 for additional
information on how subordination limits your ability to receive payment or
pursue other rights if we default or have certain other financial difficulties.
EVENTS OF DEFAULT
You will have special rights if an "event of default" occurs and is not
cured, as described later in this subsection. The events of default for the
senior debt securities are different than those for the subordinated debt
securities.
The Senior Indenture. Under the senior indenture, the term "event of
default" means any of the following:
- We do not pay the principal or any premium on a debt security on its due
date;
- We do not pay interest on a debt security within 30 days of its due date;
- We do not deposit any sinking fund payment on its due date;
- We remain in breach of the restrictive covenant described previously
under "The Senior Indenture Limits How We May Dispose of Voting Stock of
Our Principal Subsidiary Bank" or any other term of the senior indenture
for 60 days after we receive a notice stating we are in breach. The
notice must be sent by either the trustee or direct holders of at least
25% of the principal amount of outstanding debt securities of the
affected series;
- We or Dime Savings Bank fail to pay an amount of debt (other than the
debt securities) totaling more than $5,000,000, our obligation to repay
is accelerated by our lenders, and this payment obligation remains
accelerated for 60 days after we receive notice of default as described
in the previous paragraph;
- We file for bankruptcy or certain other events in bankruptcy, insolvency
or reorganization occur; and
- Any other event of default described in the prospectus supplement occurs.
(Section 501)
The Subordinated Indenture. Under the subordinated indenture, the term
"event of default" means any of the following:
- We file for bankruptcy or certain other events in bankruptcy, insolvency
or reorganization occur; and
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- Any other event of default described in the prospectus supplement occurs.
(Section 501)
Under the subordinated indenture, the term "default" means any of the
following:
- We do not pay the principal or any premium on a debt security on its due
date;
- We do not pay interest on a debt security within 30 days of its due date;
- An event of default occurs with respect to any security of that series;
- We remain in breach of any other term of the subordinated indenture for
30 days after we receive a notice stating we are in breach. The notice
must be sent by either the trustee or direct holders of at least 25% of
the principal amount of outstanding debt securities of the affected
series;
- Any other default described in the prospectus supplement (Section 503)
occurs.
Remedies If an Event of Default Occurs. If an event of default has occurred
and has not been cured, the trustee or the direct holders of 25% in principal
amount of the outstanding debt securities of the affected series may declare the
entire principal amount of all the debt securities of that series to be due and
immediately payable. This is called a "declaration of acceleration of maturity."
A declaration of acceleration of maturity may be canceled by the direct holders
of at least a majority in principal amount of the debt securities of the
affected series. (Section 502) If an event of default occurs because of certain
events in bankruptcy, insolvency or reorganization, the principal amount of all
the debt securities of that series will be automatically accelerated, without
any action by the trustee or any direct holder.
Except in cases of default, where a trustee has some special duties, a
trustee is not required to take any action under the indenture at the request of
any direct holders unless the direct holders offer the trustee reasonable
protection from expenses and liability (called an "indemnity"). (Section 603) If
reasonable indemnity is provided, the direct holders of a majority in principal
amount of the outstanding debt securities of the relevant series may direct the
time, method and place of conducting any lawsuit or other formal legal action
seeking any remedy available to the trustee. These majority direct holders may
also direct the trustee in performing any other action under the indenture.
(Section 512)
In general, before you bypass the trustee and bring your own lawsuit or
other formal legal action or take other steps to enforce your rights or protect
your interests relating to the debt securities, the following must occur:
- You must give the trustee written notice that an event of default has
occurred and remains uncured;
- The direct holders of 25% in principal amount of all outstanding debt
securities of the relevant series must make a written request that the
trustee take action because of the default, and must offer reasonable
indemnity to the trustee against the cost and other liabilities of taking
that action;
- The trustee must have not taken action for 60 days after receipt of the
above notice and offer of indemnity; and
- The trustee must not have received from direct holders of a majority in
principal amount of the outstanding debt securities of that series a
direction inconsistent with the written notice during the 60 day period
after receipt of the above notice. (Section 507)
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your debt security on or after its due date. (Section 508)
"STREET NAME" AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS
FOR INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A REQUEST OF THE
TRUSTEE AND TO MAKE OR CANCEL A DECLARATION OF ACCELERATION.
We will furnish to the trustee every year a written statement of certain of
our officers certifying that to their knowledge we are in compliance with the
indenture and the debt securities, or else specifying any default. (Section
1004)
SUBORDINATION OF THE SUBORDINATED DEBT SECURITIES
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The subordinated debt securities are subordinated securities and, as a
result, the payment of principal of, and any premium and interest on, the debt
securities is subordinated in right of payment to the prior payment in full of
all of our senior debt. This means that, in certain circumstances where we may
not be making payments on all of our debt obligations as they come due, the
holders of all of our senior debt will be entitled to receive payment in full of
all amounts that are due or will become due on their debt securities before the
holders of subordinated debt securities will be entitled to receive any amounts
on the subordinated debt securities. These circumstances include:
- We make a payment or distribute assets to creditors upon any liquidation,
dissolution, winding up or reorganization of our company, or as part of
an assignment or marshalling of our assets for the benefit of our
creditors;
- We file for bankruptcy or certain other events in bankruptcy, insolvency
or similar proceedings occur; or
- The maturity of the subordinated debt securities is accelerated. For
example, the entire principal amount of a series of subordinated debt
securities may be declared to be due and immediately payable or may be
automatically accelerated due to an event of default as described under
"Events of Default" on page 16.
In addition, we are not permitted to make payments of principal of, or any
premium or interest on, the subordinated debt securities if we default in our
obligation to make payments on senior debt and do not cure such default, or if
an event of default that permits the holders of senior debt to accelerate the
maturity of the senior debt occurs.
These subordination provisions mean that if we are insolvent a direct
holder of our senior debt may ultimately receive out of our assets more than a
direct holder of the same amount of our subordinated debt securities and a
creditor of ours that is owed a specific amount may ultimately receive more than
a direct holder of the same amount of subordinated debt securities.
"Senior debt" means the principal of, and any premium and interest on, all
of our indebtedness (including indebtedness of others that we guarantee),
whether such indebtedness exists now or is created, incurred or assumed by us
after the date of this prospectus, that is for money we borrow or is evidenced
by a note or similar instrument that we have given when we acquire any business,
property or assets or that we owe as a lessee under leases that generally
accepted accounting principles require us to capitalize on our balance sheet or
leases made as part of any sale and leaseback transaction we engage in. Senior
debt includes any senior debt securities. Senior debt also includes any
amendment, renewal, replacement, extension, modification and refunding of any
indebtedness that itself was senior debt. Senior debt does not include any
indebtedness that expressly states in the instrument creating or evidencing it
that it does not rank senior in right of payment to the debt securities. Senior
debt does not include the subordinated debt securities.
At March 31, 1999, we owed a total of $200 million in principal amount of
senior debt, without counting any accrued interest on that senior debt. The
indenture does not limit the amount of senior debt we are permitted to have, and
we may in the future incur additional senior debt.
REGARDING THE TRUSTEE
The trustee for the senior debt securities and the trustee for the
subordinated debt securities each will be named in the applicable prospectus
supplement.
Any trustee of debt securities may resign or be removed, and a new trustee
may be appointed to replace the previous trustee. If two or more persons or
entities are acting as trustees for different series of debt securities, each
trustee is a trustee of a trust under its indenture separate from the trust
administered by any other trustee. Any action to be taken by the "trustee" may
then be taken by each trustee only with respect to the series of debt securities
for which it is trustee.
In the ordinary course of business, we and our subsidiaries may conduct
transactions with trustees, and trustees and their affiliates may conduct
transactions with us and our subsidiaries.
18
<PAGE> 20
PLAN OF DISTRIBUTION
We may sell, from time to time, the debt securities through agents or
underwriters, or directly to one or more purchasers.
AGENTS
We may designate agents who agree to use their reasonable efforts to
solicit purchases for the period of their appointment to sell debt securities on
a continuing basis.
UNDERWRITERS
If we use underwriters for a sale of debt securities, the debt securities
will be acquired by the underwriters for their own account. The underwriters may
resell the debt securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase debt
securities will be subject to certain conditions. Unless the applicable
prospectus supplement has different terms, the underwriters will be obligated to
purchase all the debt securities of the series offered if any of the debt
securities of that series are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to underwriters may be
changed from time to time.
DIRECT SALES
We may also sell debt securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers and agents that participate in the distribution of
the debt securities may be underwriters as defined in the Securities Act of
1933, and any discounts or commissions they receive from us and any profit on
their resale of the debt securities may be treated as underwriting discounts and
commissions under the Securities Act. Any underwriters, dealers or agents will
be identified and their compensation described in the applicable prospectus
supplement. We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act. Underwriters, dealers and agents may engage in transactions
with or perform services for us or our subsidiaries in the ordinary course of
their business.
VALIDITY OF THE DEBT SECURITIES
Unless otherwise indicated in the applicable prospectus supplement, the
validity of any debt securities offered hereby will be passed upon for us by our
counsel, Sullivan & Cromwell, New York, New York.
19
<PAGE> 21
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference room, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549 and at the SEC's public reference rooms in its
offices in New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Because
our common stock is listed on the NYSE, you may inspect reports, proxy
statements and other information about us at the offices of the NYSE, 20 Broad
Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" information we file with
them, which means that we can disclose important information to you by referring
you to other documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until we sell all of the debt securities.
- Annual Report on Form 10-K for the fiscal year ended December 31, 1998.
- Quarterly Report on Form 10-Q for the quarter ended March 31, 1999.
- Current Reports on Form 8-K dated January 21, 1999, January 28, 1999,
April 15, 1999, April 26, 1999 and May 27, 1999; and Amendment No. 1 to
Current Report on Form 8-K dated April 19, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Dime Bancorp, Inc.
589 Fifth Avenue
New York, New York 10017
Attention: Investor Relations Department
Telephone (212) 326-6170
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these debt securities in states where the offer is not permitted. You
should not assume that the information appearing in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
EXPERTS
Our consolidated financial statements as of December 31, 1998 and 1997 and
for each of the years in the three-year period ended December 31, 1998, included
in our 1998 annual report on Form 10-K and incorporated by reference in this
prospectus have been incorporated by reference herein and in the registration
statement of which this prospectus is a part in reliance on the report of KPMG
LLP, independent public accountants, included in our 1998 annual report on Form
10-K, and incorporated by reference herein, and upon the authority of such firm
as experts in accounting and auditing.
20
<PAGE> 22
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
SEC registration fee........................................ $ 55,600
Trustee, transfer agent and registrar fees and expenses..... 12,000*
Printing and engraving fees................................. 10,000*
Legal fees and expenses..................................... 150,000*
Blue Sky fees and expenses.................................. 10,000*
Accounting fees and expenses................................ 25,000*
Rating agency fees.......................................... 195,000*
Miscellaneous............................................... 9,500*
--------
Total..................................................... $467,100*
========
</TABLE>
- ---------------------------
* Estimated
ITEM 15. Indemnification of Directors and Officers.
Under the Delaware General Corporation Law ("DGCL"), a corporation is
permitted to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the person is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful. However,
indemnity may not be granted in respect of a claim, issue or matter as to which
a person has been adjudged to be liable to the corporation unless and only to
the extent that the Delaware Court of Chancery or the court in which the action
or suit was brought has determined upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as the
Court of Chancery or such other court deems proper. Expenses (including
attorneys' fees) incurred by an officer or director in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding if the corporation receives an undertaking by or on behalf of the
director or officer to repay such advances if it is ultimately determined that
the director or officer is not entitled to indemnification for such expenses.
Expenses may be advanced to any former officer or director or to any other
employee or agent of the corporation on such terms and conditions as the
corporation deems appropriate.
If a present or former director or officer of a corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described in the preceding paragraph, or in defense of any claim,
issue or matter therein, the corporation is required to indemnify such person
against expenses (including attorney's fees) actually and reasonably incurred by
such person in connection therewith.
The Registrant's Amended and Restated Certificate of Incorporation provides
for indemnification and exculpation of the directors and officers of the
Registrant to the extent permitted under the DGCL as described above.
The Registrant maintains a full directors' and officers' liability policy
to cover the Registrant and its directors and officers for amounts, subject to
policy limits, that the Registrant may be required to pay by
II-1
<PAGE> 23
way of indemnification to its directors or officers under its Amended and
Restated Certificate of Incorporation or by-laws or otherwise and for the
protection of individual directors and officers from losses and liabilities for
which they may not be indemnified by the Registrant.
The forms of Underwriting Agreement to be included as Exhibits 1(a) and
1(b) hereto provide for indemnification of directors, certain officers and
controlling persons of the Registrant against certain liabilities, including
liabilities under the Securities Act of 1933, as amended.
ITEM 16. Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
- ------- -------
<C> <S>
1 Form of Underwriting Agreement.
3(i) Amended and Restated Certificate of Incorporation,
incorporated by reference to Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March
31, 1998, filed with the Commission on May 15, 1998 (File
No. 001-13094).
3(ii) By-Laws of the Registrant incorporated by reference to
Exhibit 3 to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1997, filed with the
Commission on August 14, 1997 (File No. 001-13094).
4(a) Form of Senior Indenture incorporated by reference to
Exhibit 4 to the Registrant's Current Report on Form 8-K
dated January 27, 1999, filed with the Commission on January
28, 1999 (File No. 001-13094).
4(b) Form of Senior Debt Security (filed by reference to Article
Two of Exhibit 4(a)).
4(c) Form of Subordinated Indenture.
4(d) Form of Subordinated Debt Security (filed by reference to
Article Two of Exhibit 4(c)).
5 Opinion of Sullivan & Cromwell regarding the validity of the
debt securities.
12 Statement regarding computation of ratios of earnings to
fixed charges.
23(a) Consent of Sullivan & Cromwell (filed by reference to
Exhibit 5).
23(b) Consent of KPMG LLP.
24 Powers of Attorney.*
25 Form T-1
</TABLE>
- ---------------------------
* Previously filed.
ITEM 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
II-2
<PAGE> 24
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes to cause to be filed an
application for the purpose of determining the eligibility of the trustee in
respect of the senior indenture and the subordinated indenture to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust
Indenture Act.
II-3
<PAGE> 25
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in The City of New York, State of New York, on this 28th day of May,
1999.
DIME BANCORP, INC.
(Registrant)
By /s/ LAWRENCE J. TOAL
-----------------------------------
(Lawrence J. Toal)
(Chairman of the Board, Chief
Executive Officer,
President and Chief Operating
Officer)
Pursuant to the requirements of the Securities Act of 1933, this amendment
has been signed by the following persons in the following capacities as of May
28, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ LAWRENCE J. TOAL Chief Executive Officer, President, Chief
- ------------------------------------------ Operating Officer, Chairman of the Board and a
(LAWRENCE J. TOAL) Director (Principal Executive Officer)
/s/ ANTHONY R. BURRIESCI Chief Financial Officer (Principal Financial
- ------------------------------------------ Officer)
(ANTHONY R. BURRIESCI)
/s/ JOHN F. KENNEDY Controller (Principal Accounting Officer)
- ------------------------------------------
(JOHN F. KENNEDY)
* A Director
- ------------------------------------------
(DERRICK D. CEPHAS)
* A Director
- ------------------------------------------
(FREDERICK C. CHEN)
* A Director
- ------------------------------------------
(J. BARCLAY COLLINS II)
* A Director
- ------------------------------------------
(RICHARD W. DALRYMPLE)
* A Director
- ------------------------------------------
(JAMES F. FULTON)
* A Director
- ------------------------------------------
(FRED B. KOONS)
</TABLE>
II-4
<PAGE> 26
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* A Director
- ------------------------------------------
(VIRGINIA M. KOPP)
* A Director
- ------------------------------------------
(JAMES M. LARGE, JR.)
* A Director
- ------------------------------------------
(JOHN MORNING)
* A Director
- ------------------------------------------
(MARGARET OSMER-MCQUADE)
* A Director
- ------------------------------------------
(SALLY HERNANDEZ-PINERO)
* A Director
- ------------------------------------------
(DR. PAUL A. QUALBEN)
* A Director
- ------------------------------------------
(EUGENE G. SCHULZ, JR.)
* A Director
- ------------------------------------------
(HOWARD SMITH)
* A Director
- ------------------------------------------
(DR. NORMAN R. SMITH)
* A Director
- ------------------------------------------
(IRA T. WENDER)
*By: LAWRENCE J. TOAL
ATTORNEY-IN-FACT
/s/ LAWRENCE J. TOAL
- ------------------------------------------
(LAWRENCE J. TOAL)
ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE> 27
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
- ------- -------
<C> <S>
1 Form of Underwriting Agreement.
3(i) Amended and Restated Certificate of Incorporation,
incorporated by reference to Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March
31, 1998, filed with the Commission on May 15, 1998 (File
No. 001-13094).
3(ii) By-Laws of the Registrant incorporated by reference to
Exhibit 3 to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1997, filed with the
Commission on August 14, 1997 (File No. 001-13094).
4(a) Form of Senior Indenture incorporated by reference to
Exhibit 4 to the Registrant's Current Report on Form 8-K
dated January 27, 1999, filed with the Commission on January
28, 1999 (File No. 001-13094).
4(b) Form of Senior Debt Security (filed by reference to Article
Two of Exhibit 4(a)).
4(c) Form of Subordinated Indenture.
4(d) Form of Subordinated Debt Security (filed by reference to
Article Two of Exhibit 4(c)).
5 Opinion of Sullivan & Cromwell regarding the validity of the
debt securities.
12 Statement regarding computation of ratios of earnings to
fixed charges.
23(a) Consent of Sullivan & Cromwell (filed by reference to
Exhibit 5).
23(b) Consent of KPMG LLP.
24 Powers of Attorney.*
25 Form T-1
</TABLE>
- ---------------------------
* Previously filed.
<PAGE> 1
Exhibit 1
================================================================================
DIME BANCORP, INC.
(a Delaware corporation)
[Title of Debt Securities]
UNDERWRITING AGREEMENT
__________________
Dated as of ________ __, 19__
__________________
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. Representations and Warranties............................. 2
(a) Representations and Warranties by the Company.............. 2
(i) Compliance with Registration Requirements...... 3
(ii) Incorporated Documents......................... 3
(iii) Independent Accountants........................ 4
(iv) Financial Statements........................... 4
(v) No Material Adverse Change in Business......... 4
(vi) Good Standing of the Company................... 4
(vii) Good Standing of Subsidiaries.................. 5
(viii)Capitalization................................. 5
(ix) Authorization of Agreement and Indenture....... 5
(x) Authorization and Description of Securities.... 6
(xi) Absence of Defaults and Conflicts.............. 6
(xii) Absence of Labor Dispute....................... 7
(xiii)Absence of Proceedings......................... 7
(xiv) Exhibits....................................... 7
(xv) Absence of Further Requirements................ 7
(xvi) Possession of Licenses and Permits............. 7
(xvii)Title to Property.............................. 8
(xviii)Environmental Laws............................ 8
(xix) Not an Investment Company...................... 9
(b) Officer's Certificates..................................... 9
SECTION 2. Sale and Delivery to Underwriters; Closing................. 9
(a) Securities................................................. 9
(b) Payment.................................................... 9
(c) Denominations; Registration................................ 10
SECTION 3. Covenants of the Company................................... 10
(a) Compliance with Securities Regulations and Commission
Requests................................................. 10
(b) Filing of Amendments....................................... 10
(c) Delivery of Registration Statements........................ 11
(d) Delivery of Prospectuses................................... 11
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
(e) Continued Compliance with Securities Laws.................. 11
(f) Blue Sky Qualifications.................................... 12
(g) Rule 158................................................... 12
(h) Restriction on Sale of Securities.......................... 12
(i) Reporting Requirements..................................... 12
SECTION 4. Payment of Expenses........................................ 13
(a) Expenses................................................... 13
(b) Termination of Agreement................................... 13
SECTION 5. Conditions of Underwriters' Obligations.................... 13
(a) Effectiveness of Registration Statement.................... 13
(b) Opinion of Counsel for Company............................. 14
(c) Opinion of Counsel for Underwriters........................ 14
(d) Officers' Certificate...................................... 14
(e) Accountant's Comfort Letter................................ 15
(f) Bring-down Comfort Letter.................................. 15
(g) No Objection............................................... 15
(h) Additional Documents....................................... 15
(i) Termination of Agreement................................... 15
SECTION 6. Indemnification............................................ 15
(a) Indemnification by the Company............................. 15
(b) Indemnification by the Underwriters........................ 17
(c) Actions against Parties; Notification...................... 17
(d) Other Agreements........................................... 18
SECTION 7. Contribution............................................... 18
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery................................................. 19
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 9. Termination of Agreement................................... 19
(a) Termination; General....................................... 19
(b) Liabilities................................................ 20
SECTION 10. Default by One or More of the Underwriters................. 20
SECTION 11. Default by the Company..................................... 21
SECTION 12. Notices.................................................... 21
SECTION 13. Parties.................................................... 21
SECTION 14. GOVERNING LAW AND TIME..................................... 21
SECTION 15. Effect of Headings......................................... 22
</TABLE>
SCHEDULES:
SCHEDULE A Underwriters
SCHEDULE B Pricing
EXHIBIT:
EXHIBIT A Opinion of Company Counsel to be delivered pursuant to Section
5(b)
-iii-
<PAGE> 5
DIME BANCORP, INC.
(a Delaware corporation)
[Title of Debt Securities]
UNDERWRITING AGREEMENT
______________, 199_
[NAME]
as Representative of the several Underwriters
[ADDRESS]
Ladies and Gentlemen:
Dime Bancorp, Inc., a Delaware corporation (the "Company"), confirms
its agreement with [Name]("[Name]") 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 [Name] is acting as representative (in such capacity, the
"Representative"), with respect to the purchase by the Underwriters, acting
severally and not jointly, of $______ principal amount of the [Title of Debt
Securities] (the "Securities") of the Company, to be issued pursuant to the
provisions of an Indenture, dated as of ______________, 199_ (the "Indenture"),
between the Company and ____________, as Trustee (the "Trustee").
The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as the Representative deems advisable
after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-_____) covering
the registration of debt securities 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
Company 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 Company has
elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations,
<PAGE> 6
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 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 and 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, is herein called the "Prospectus." If Rule 434 is relied on,
the term "Prospectus" shall refer to the preliminary prospectus dated ___, 199_
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 by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof, as follows:
-2-
<PAGE> 7
(i) Compliance with Registration Requirements. The Company meets
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 Company, are contemplated by the Commission and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, 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 Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to (i)
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 in writing by any
Underwriter through [Name] expressly for use in the Registration
Statement, the Prospectus or any such amendment or supplement or (ii) that
part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") of the Trustee.
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
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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
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 and, 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 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 Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to 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 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
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<PAGE> 9
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 this Agreement; 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 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 FDIC; 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 and North
American Mortgage Company are the only "significant subsidiaries" of the
Company (as such term is defined in Rule 1- 02 of Regulation S-X) and each
has 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.
(viii) Capitalization. The Company had at the date indicated a duly
authorized and outstanding capitalization as set forth in the Registration
Statement.
(ix) Authorization of Agreement and Indenture. This Agreement has
been duly authorized, executed and delivered by the Company. The Indenture
has been duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of equity.
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<PAGE> 10
(x) Authorization and Description of Securities. The Securities
have been duly authorized and, when issued and authenticated in accordance
with the provisions of the Indenture and delivered against payment
therefor as provided herein, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity. The Securities conform to the
description thereof under the heading "Description of Debt Securities"
contained in the Prospectus and such description, insofar as it purports
to be a summary of the instruments defining the rights of holders of the
Securities, is accurate, complete and fair in all material respects.
(xi) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or 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 the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property
or assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the Indenture and the consummation of
the transactions contemplated herein, in the Indenture and in the
Registration Statement (including the issuance and sale of the Securities)
and compliance by the Company with its obligations hereunder and under the
Indenture have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, 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 Company or any subsidiary pursuant to, 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), nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any subsidiary or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties 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.
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<PAGE> 11
(xii) 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 Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xiii) 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 Company, threatened, against or affecting 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 in this
Agreement or the performance by the Company of its obligations hereunder.
(xiv) 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.
(xv) 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 of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, 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.
(xvi) Possession of Licenses and Permits. The Company and its
subsidiaries possess 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 them; the Company and
its 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
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<PAGE> 12
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company
nor any of its 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.
(xvii) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property reflected in the most
recent balance sheet included in the Prospectus as owned by the Company
and its subsidiaries and good title to all other properties reflected in
the most recent balance sheet included in the Prospectus as owned by them,
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 Company or any of 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 Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries holds
properties described in the Prospectus, are in full force and effect, and
neither the Company nor any subsidiary has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights
of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or
such subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xviii) 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,
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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 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.
(xix) Not an Investment Company. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriters as to the matters covered thereby, without
personal liability for the officer signing such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the principal amount of Securities set forth
in Schedule A opposite the name of the Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment shall be made to the Company by wire transfer
of immediately available funds to a bank account designated by the Company
against delivery by the Company to the Representative for the respective
accounts of the Underwriters of certificates for the Securities to be purchased
by them. The time and date of such payment and delivery shall be 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 upon by the
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Representative and the Company (such time and date of payment and delivery being
herein called the "Closing Time"). It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Securities that it has
agreed to purchase. [Name], individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities
shall be in such denominations and registered in such names as the
Representative may request in writing at least one full business day before the
Closing Time. The certificates for the Securities will be made available for
examination and packaging by the Representative 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 Company. The Company covenants
with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representative 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 Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
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, it will promptly file such prospectus. The Company 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. The Company will give the Representative
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
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<PAGE> 15
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
Representative 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 Representative or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Representative 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 Representative, 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 Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company 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 Company 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 Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the 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 Company, 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 1933 Act or the 1933 Act Regulations, the Company
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
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<PAGE> 16
Statement or the Prospectus comply with such requirements, and the Company 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 Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Representative may designate and to maintain such qualifications in
effect for as long as may be necessary to complete the distribution of
Securities; provided, however, that the Company shall not 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.
(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 beginning on
the date hereof and continuing to and including the Closing Time, the Company
will not, without the prior written consent of [Name], 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 debt securities substantially
similar to the Securities, except that the foregoing sentence shall not apply to
(A) the Securities to be sold hereunder and (B) commercial paper issued in the
ordinary course of business.
(i) Reporting Requirements. The Company, 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 when the failure to file such documents could
not reasonably be expected to result, directly or indirectly, in a Material
Adverse Effect.
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SECTION 4. Payment of Expenses.
(a) Expenses. The Company covenants and agrees with the several
Underwriters that (a) the Company will pay the following expenses incident to
this Agreement: (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 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 Securities to the Underwriters, (iv) the
fees and disbursements of the Company'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 fees and expenses of any transfer agent or
registrar for the Securities, (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities and (ix)
any fees payable in connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative 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 Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its 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
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<PAGE> 18
additional information shall have been complied with to the reasonable
satisfaction of counsel to 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 Company has 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 Closing Time, the
Representative shall have received the favorable opinions, dated as of Closing
Time, of Sullivan & Cromwell, counsel for the Company, and James E. Kelly, Esq.,
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 Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of [Name], 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 Representative. 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 officers of the Company and its
subsidiaries and certificates of public officials.
(d) Officers' Certificate. At 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 Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representative 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, dated as of
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
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied pursuant to this
Agreement at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued
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<PAGE> 19
and no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representative shall have received from KPMG Peat Marwick
LLP a letter dated such date, in form and substance satisfactory to the
Representative, 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.
(f) Bring-down Comfort Letter. At Closing Time, the Representative
shall have received from KPMG Peat Marwick LLP a letter, dated as of Closing
Time, to the effect that it reaffirms the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(g) No Objection. The NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(h) 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 Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the Representative and counsel for the Underwriters.
(i) 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 Representative by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other 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 by the Company. The Company agrees to 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:
-15-
<PAGE> 20
(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 (subject to
Section 6(e) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by [Name]),
reasonably incurred 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 statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) 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 Company by any
Underwriter through [Name], 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 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 Company if the
Company shall have
-16-
<PAGE> 21
furnished any amendments or supplements thereto) and a copy of the Prospectus
(as so amended or supplemented), excluding documents incorporated by reference,
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 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, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, and the Company, 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 Company by such Underwriter
through [Name] 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 Section 6(a)
above, counsel to the indemnified parties shall be selected by [Name], and in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. 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
-17-
<PAGE> 22
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.
(d) Other Agreements. The provisions of this Section shall not
affect any agreement between the Company, or between the Representative, with
respect to indemnification.
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 Company on the one hand and the
Underwriters on the other hand from the offering of the 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 Company 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 Company on the one hand and
the Underwriters on the other hand in connection with the offering of the
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
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount 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 Securities as set forth on such cover.
The relative fault of the Company 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 Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company 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
-18-
<PAGE> 23
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 Securities underwritten 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 officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company 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. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of 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 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, and shall survive delivery of the Securities to
the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to 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
-19-
<PAGE> 24
development involving a prospective material adverse change, in the financial
condition, results of operations or stockholders' equity of 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 material
change or development involving a prospective material 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 Representative,
impracticable to market the Securities or to enforce contracts for the sale of
the 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 and 7 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 Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative 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 Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then: (a) if the number of
Defaulted Securities does not exceed 10% of the number of 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 Securities exceeds 10% of the number of 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.
-20-
<PAGE> 25
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone 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 Company. If the Company shall make such
delivery but the Company shall fail to deliver the Securities to the
Representative, then the Underwriters may, at the option of the Representative,
by notice from the Representative to the Company, terminate this Agreement
without any liability on the fault 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 Representative at
__________________________________________, attention of
________________________; notices to the Company shall be directed to it at 589
Fifth Avenue, New York, New York 10017, attention of General Counsel.
SECTION 13. Parties. This Agreement shall inure to the benefit of
and be binding upon each of the Underwriters and the Company 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 and the Company 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 and the Company 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 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.
-21-
<PAGE> 26
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.
-22-
<PAGE> 27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company [ ] counterparts hereof,
whereupon this agreement, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
DIME BANCORP, INC.
By__________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
[NAME]
By _______________________
Authorized Signatory
For itself and as Representative of the other Underwriters
named in Schedule A hereto.
-23-
<PAGE> 28
EXHIBIT A
OPINION OF THE COMPANY'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
The opinions of special 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 meaning ascribed
to them in the Underwriting 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) To the best of such counsel's knowledge, the Bank is validly
existing as a Federal savings bank under the Federal laws of the United
States. The Bank has the requisite power and authority to conduct its
business in all material respects as described in the Prospectus.
(iii) The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act of 1939;
the Securities have been duly authorized, executed, authenticated, issued
and delivered; and the Indenture and the Securities constitute valid and
legally binding obligations of the Company enforceable in accordance with
their 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.
(iv) The statements set forth under the headings "Description of
Debt Securities" and "Underwriting" in the Prospectus, insofar as such
statements purport to constitute summaries of certain terms of the
Securities and each of the Underwriting Agreement and the Indenture
(together, the "Operative Documents"), in each case constitute accurate
summaries in all material respects.
(v) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company 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 of the Securities by the Company have been obtained or made.
-1-
<PAGE> 29
(vi) The execution and delivery of the Operative Documents by the
Company, the issuance and delivery of the Securities, the consummation by
the Company of the transactions contemplated in the Operative Documents
does not, and compliance by the Company with its obligations under the
Operative Documents and the fulfillment of the terms thereof will not,
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, (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; provided, however, that, for
purposes of this paragraph (vi), such counsel need not express an opinion
with respect to Federal or state securities laws, other antifraud laws or
fraudulent transfer laws.
(vii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(viii) The Company is not, and following consummation of the
transactions contemplated by the Underwriting Agreement and the
application of the net proceeds as described in the Prospectus will not
be, an "investment company" or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(ix) To the best of such counsel's knowledge, no litigation or
governmental proceeding of any kind is instituted or threatened against
the Company or any of its consolidated subsidiaries that might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the consummation
of the transactions contemplated in the Underwriting Agreement or the
performance by the Company of its obligations thereunder or the
transactions contemplated by the Prospectus.
In addition, 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 became effective, and 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. 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
-2-
<PAGE> 30
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 captions "Description of Debt Securities" 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.
-3-
<PAGE> 1
EXHIBIT 4(c)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
DIME BANCORP, INC.
TO
-----------------------
Trustee
--------------
INDENTURE
Dated as of ___________, 19__
--------------
SUBORDINATED DEBT SECURITIES
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
..............................................................
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310
THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1)................................................ 609
(a)(2) .................................................... 609
(a)(3) .................................................... Not Applicable
(a)(4) .................................................... Not Applicable
(b) .................................................... 608
610
Section 311(a) .................................................... 613
(b) .................................................... 613
Section 312(a) .................................................... 701
702
(b) .................................................... 702
(c) .................................................... 702
Section 313(a) .................................................... 703
(b) .................................................... 703
(c) .................................................... 703
(d) .................................................... 703
Section 314(a) .................................................... 704
(a)(4) .................................................... 101
1004
(b) .................................................... Not Applicable
(c)(1) .................................................... 102
(c)(2) .................................................... 102
(c)(3) .................................................... Not Applicable
(d) .................................................... Not Applicable
(e) .................................................... 102
Section 315(a) .................................................... 601
(b) .................................................... 602
(c) .................................................... 601
(d) .................................................... 601
(e) .................................................... 514
Section 316(a) .................................................... 101
(a)(1)(A) .................................................... 502
512
(a)(1)(B) .................................................... 513
(a)(2) .................................................... Not Applicable
(b) .................................................... 508
(c) .................................................... 104
Section 317(a)(1).................................................. 503
(a)(2) .................................................... 504
(b) .................................................... 1003
Section 318(a) ................................................... 107
</TABLE>
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
----------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES....................................................................................... 1
RECITALS OF THE COMPANY....................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act........................................................................ 2
Affiliate; control......................................................... 2
Authenticating Agent....................................................... 2
Bank....................................................................... 2
Board of Directors......................................................... 2
Board Resolution........................................................... 2
Business Day............................................................... 2
Commission................................................................. 2
Company.................................................................... 2
Company Request; Company Order............................................. 3
Corporate Trust Office..................................................... 3
corporation................................................................ 3
Covenant Defeasance........................................................ 3
Default.................................................................... 3
Defaulted Interest......................................................... 3
Defeasance................................................................. 3
Depositary................................................................. 3
Entitled Persons........................................................... 3
Event of Default........................................................... 3
Excess Proceeds............................................................ 3
Exchange Act............................................................... 3
Expiration Date............................................................ 3
Foreign Government Obligation.............................................. 3
Global Security............................................................ 3
Holder..................................................................... 3
Indenture.................................................................. 3
interest................................................................... 4
Interest Payment Date...................................................... 4
Investment Company Act..................................................... 4
Maturity................................................................... 4
Notice of Default.......................................................... 4
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Officers' Certificate...................................................... 4
Opinion of Counsel......................................................... 4
Original Issue Discount Security........................................... 4
Other Financial Obligations................................................ 4
Outstanding................................................................ 5
Paying Agent............................................................... 6
Person..................................................................... 6
Place of Payment........................................................... 6
Predecessor Security....................................................... 6
Redemption Date............................................................ 6
Redemption Price........................................................... 6
Regular Record Date........................................................ 6
Responsible Officer........................................................ 6
Securities................................................................. 6
Securities Act............................................................. 7
Security Register and Security Registrar................................... 7
Senior Indebtedness........................................................ 7
Special Record Date........................................................ 7
Stated Maturity............................................................ 7
Subsidiary................................................................. 7
Trust Indenture Act........................................................ 7
Trustee.................................................................... 7
U.S. Government Obligation................................................. 7
Vice President............................................................. 8
SECTION 102. Compliance Certificates and Opinions....................................... 8
SECTION 103. Form of Documents Delivered to Trustee..................................... 8
SECTION 104. Acts of Holders; Record Dates.............................................. 9
SECTION 105. Notices, Etc., to Trustee and Company...................................... 11
SECTION 106. Notice to Holders; Waiver.................................................. 11
SECTION 107. Conflict with Trust Indenture Act.......................................... 12
SECTION 108. Effect of Headings and Table of Contents................................... 12
SECTION 109. Successors and Assigns..................................................... 12
SECTION 110. Separability Clause........................................................ 12
SECTION 111. Benefits of Indenture...................................................... 12
SECTION 112. Governing Law.............................................................. 13
SECTION 113. Legal Holidays............................................................. 13
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally............................................................ 13
SECTION 202. Form of Face of Security................................................... 14
SECTION 203. Form of Reverse of Security................................................ 15
SECTION 204. Form of Legend for Global Securities....................................... 20
SECTION 205. Form of Trustee's Certificate of Authentication............................ 20
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series....................................... 20
SECTION 302. Denominations.............................................................. 23
SECTION 303. Execution, Authentication, Delivery and Dating............................. 23
SECTION 304. Temporary Securities....................................................... 25
SECTION 305. Registration, Registration of Transfer and Exchange........................ 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........................... 27
SECTION 307. Payment of Interest; Interest Rights Preserved............................. 28
SECTION 308. Persons Deemed Owners...................................................... 29
SECTION 309. Cancellation............................................................... 29
SECTION 310. Computation of Interest.................................................... 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.................................... 30
SECTION 402. Application of Trust Money................................................. 31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.......................................................... 31
SECTION 502. Acceleration of Maturity; Rescission and Annulment......................... 32
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
PAGE
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<S> <C>
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee................................................. 33
SECTION 504. Trustee May File Proofs of Claim........................................... 34
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.......................................................... 35
SECTION 506. Application of Money Collected............................................. 35
SECTION 507. Limitation on Suits........................................................ 35
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................... 36
SECTION 509. Restoration of Rights and Remedies......................................... 36
SECTION 510. Rights and Remedies Cumulative............................................. 36
SECTION 511. Delay or Omission Not Waiver............................................... 37
SECTION 512. Control by Holders......................................................... 37
SECTION 513. Waiver of Past Defaults.................................................... 37
SECTION 514. Undertaking for Costs...................................................... 38
SECTION 515. Waiver of Usury, Stay or Extension Laws.................................... 38
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities........................................ 38
SECTION 602. Notice of Defaults......................................................... 39
SECTION 603. Certain Rights of Trustee.................................................. 39
SECTION 604. Not Responsible for Recitals or Issuance of Securities..................... 40
SECTION 605. May Hold Securities........................................................ 40
SECTION 606. Money Held in Trust........................................................ 40
SECTION 607. Compensation and Reimbursement............................................. 41
SECTION 608. Conflicting Interests...................................................... 41
SECTION 609. Corporate Trustee Required; Eligibility.................................... 41
SECTION 610. Resignation and Removal; Appointment of Successor.......................... 42
SECTION 611. Acceptance of Appointment by Successor..................................... 43
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business............................................................ 44
SECTION 613. Preferential Collection of Claims Against Company.......................... 45
SECTION 614. Appointment of Authenticating Agent........................................ 45
</TABLE>
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders............................................................. 47
SECTION 702. Preservation of Information; Communications
to Holders............................................................. 47
SECTION 703. Reports by Trustee......................................................... 47
SECTION 704. Reports by Company......................................................... 48
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms.......................................................... 48
SECTION 802. Successor Substituted...................................................... 49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders......................... 49
SECTION 902. Supplemental Indentures With Consent of Holders............................ 50
SECTION 903. Execution of Supplemental Indentures....................................... 51
SECTION 904. Effect of Supplemental Indentures.......................................... 52
SECTION 905. Conformity with Trust Indenture Act........................................ 52
SECTION 906. Reference in Securities to Supplemental Indentures......................... 52
SECTION 907. Rights of Entitled Persons in Respect of Other
Financial Obligations.................................................. 52
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest................................. 52
SECTION 1002. Maintenance of Office or Agency............................................ 53
SECTION 1003. Money for Securities Payments to Be Held in Trust.......................... 53
SECTION 1004. Statement by Officers as to Default........................................ 54
</TABLE>
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<TABLE>
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SECTION 1005. Existence.................................................................. 54
SECTION 1006. Maintenance of Properties.................................................. 55
SECTION 1007. Payment of Taxes and Other Claims.......................................... 55
SECTION 1008. Waiver of Certain Covenants................................................ 55
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................................... 56
SECTION 1102. Election to Redeem; Notice to Trustee...................................... 56
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.......................... 56
SECTION 1104. Notice of Redemption....................................................... 57
SECTION 1105. Deposit of Redemption Price................................................ 58
SECTION 1106. Securities Payable on Redemption Date...................................... 58
SECTION 1107. Securities Redeemed in Part................................................ 58
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article................................................... 59
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities...................... 59
SECTION 1203. Redemption of Securities for Sinking Fund.................................. 59
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance.................................................... 60
SECTION 1302. Defeasance and Discharge................................................... 60
SECTION 1303. Covenant Defeasance........................................................ 61
SECTION 1304. Conditions to Defeasance or Covenant Defeasance............................ 61
SECTION 1305. Deposited Money, U.S. Government Obligations and
Foreign Government Obligations to Be Held in
Trust; Miscellaneous Provisions........................................ 63
SECTION 1306. Reinstatement.............................................................. 64
</TABLE>
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ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinate to Senior Indebtedness.............................. 65
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc............................. 65
SECTION 1403. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities............................................. 66
SECTION 1404. No Payment When Senior Indebtedness in Default............................. 67
SECTION 1405. Payment Permitted in Certain Situations.................................... 67
SECTION 1406. Subrogation to Rights of Holders of
Senior Indebtedness.................................................... 67
SECTION 1407. Provisions Solely to Define Relative Rights................................ 68
SECTION 1408. Trustee to Effectuate Subordination........................................ 68
SECTION 1409. No Waiver of Subordination Provisions...................................... 69
SECTION 1410. Notice to Trustee.......................................................... 69
SECTION 1411. Reliance on Judicial Order or Certificate
of Liquidating Agent................................................... 70
SECTION 1412. Trustee Not Fiduciary for Holders of Senior
Indebtedness or Entitled Persons....................................... 70
SECTION 1413. Rights of Trustee as Holder of Senior
Indebtedness or Entitled Person;
Preservation of Trustee's Rights....................................... 70
SECTION 1414. Article Applicable to Paying Agents........................................ 71
SECTION 1415. Securities to Rank Pari Passu with Each Other; Payment of
Proceeds in Certain Cases.............................................. 71
TESTIMONIUM................................................................................... 73
SIGNATURES AND SEALS.......................................................................... 73
ACKNOWLEDGEMENTS.............................................................................. 74
</TABLE>
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INDENTURE, dated as of __________, 19__, between Dime Bancorp, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 589 Fifth Avenue,
New York, New York 10017 and ______________________, a ______________, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, 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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
<PAGE> 11
(4) 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
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Bank" means (i) any institution which accepts deposits that the depositor
has a legal right to withdraw on demand and engages in the business of making
commercial loans, and (ii) any trust company.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, 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.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
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<PAGE> 12
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
_____________ at which at any particular time its corporate trust business shall
be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Default" has the meaning specified in Section 503.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Entitled Persons" means any Person entitled to payment pursuant to the
terms of Other Financial Obligations.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning set forth in Section 1415(c).
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Foreign Government Obligation" has the meaning specified in Section 1304.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered
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<PAGE> 13
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively. The term "Indenture" shall
also include the terms of particular series of Securities established as
contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment 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 503(2)(C).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Other Financial Obligations" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 301, (a) obligations of
the Company under direct credit substitutes, (b) obligations of, or any such
obligation directly or indirectly guaranteed by, the Company for purchased money
or funds, (c) any deferred obligation of, or any such obligation directly or
indirectly guaranteed by, the Company incurred in connection with the
acquisition of any business, properties or assets not evidenced by a note or
similar instrument given in connection therewith, and (d) all obligations of the
Company to make payment pursuant to the terms of financial instruments such as
(i) securities contracts and foreign currency exchange contracts, (ii)
derivative instruments, such as swap agreements (including interest rate and
foreign exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange rate agreements, options,
commodity futures contracts and commodity options contracts and (iii) financial
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<PAGE> 14
instruments similar to those set forth in (d)(i) or (d)(ii) above; provided,
however, that Other Financial Obligations shall not include (A) obligations on
account of Senior Indebtedness and (B) obligations on account of indebtedness
for money borrowed ranking pari passu with or subordinate to the Securities.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of 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, waiver or other action, only Securities which a Responsible
Officer of the Trustee knows to be so owned
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<PAGE> 15
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 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.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means 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 on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers 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.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
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<PAGE> 16
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means, unless otherwise determined with respect to
any series of Securities pursuant to Section 301, the principal of (and premium,
if any) and interest on (a) all indebtedness of the Company (including
indebtedness of others guaranteed by the Company), whether outstanding on the
date of this Indenture or thereafter created, incurred or assumed, which is (i)
for money borrowed or (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any businesses, properties or assets of any
kind, and (b) any amendments, renewals, extensions or modifications of any such
indebtedness, unless in any case in the instrument creating or evidencing any
such indebtedness or pursuant to which the same is outstanding it is provided
that such indebtedness is not superior in right of payment to the Securities or
is to rank pari passu with or subordinate to the Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"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.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
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<PAGE> 17
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates provided for
in Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may
-8-
<PAGE> 18
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
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 may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every 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 Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company 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,
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<PAGE> 19
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 Company 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 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 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 Company 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 Company, 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 106.
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 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, 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 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 Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates 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
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<PAGE> 20
party hereto in writing, and to each Holder of Securities of the relevant series
in the manner set forth in Section 106, 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 which 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.
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 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: ________________________, or at any other address
previously furnished in writing to the Company by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 106. 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 his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders
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<PAGE> 21
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.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision 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 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. 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
hereunder, the holders of Senior Indebtedness and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
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<PAGE> 22
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
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<PAGE> 23
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BANK INSURANCE FUND, THE SAVINGS ASSOCIATION
INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
DIME BANCORP, INC.
.............................................................................
No. ......... $ .........
Dime Bancorp, Inc., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", 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 to bear interest prior to Maturity, insert -- , and to pay interest
thereon from ............. or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on ............
and ............ in each year, commencing ........., at the rate of ....% per
annum, until the principal hereof is paid or made available for payment [if
applicable, insert -- , provided that any principal and premium, and any such
instalment of interest, which is overdue shall bear interest at the rate of ...%
per annum (to the extent that the payment of such interest shall be legally
enforceable), 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
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such 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, 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 will 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 the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal
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<PAGE> 24
and any overdue premium shall bear interest at the rate of ....% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be payable on
demand. [Any such interest on overdue principal or premium which is not paid on
demand shall bear interest at the rate of ......% per annum (to the extent that
the payment of such interest on interest shall be legally enforceable), from the
date of such demand until the amount so demanded is paid or made available for
payment. Interest on any overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ............, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
DIME BANCORP, INC.
By..............................
Attest:
.................................
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ............... (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and ......................, as Trustee
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<PAGE> 25
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the holders of Senior Indebtedness, Entitled
Persons in respect of other Financial Obligations 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 $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., 19..], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
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<PAGE> 26
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- -----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert --Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[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 and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner set forth in Article Fourteen of the Indenture, the indebtedness
represented by the Securities and the payment of principal of (and premium, if
any) and interest on each and all of the Securities
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<PAGE> 27
are hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness and subject to the rights, if
any, of Entitled Persons in respect of Other Financial Obligations.
[If applicable, insert -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have
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<PAGE> 28
received from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and 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 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 Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee 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 Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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<PAGE> 29
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall 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 THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205. 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.
.......................,
As Trustee
By......................
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
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 any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
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<PAGE> 30
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on 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;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
any Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more
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<PAGE> 31
currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on such Securities
as to which such election is made shall be payable, the periods within which
and the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) 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);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;
(16) 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 which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 204 and any circumstances
in addition to or in lieu of those set forth in Clause (2) of the last
paragraph of Section 305 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 may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(17) 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 502;
(18) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section
901(5)).
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<PAGE> 32
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such 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 Company 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 and subject to the rights of Entitled Persons in respect of Other
Financial Obligations as provided in Article Fourteen. [The Securities shall
[not be superior in right of payment to, and shall] rank pari passu with [,] -
insert description of existing debt of the Company that is intended to rank on a
parity with the Securities.]]
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
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under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) 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 201, 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 301, 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 Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
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.
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
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 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 301 or the Company 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 manual signature, 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 Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, 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.
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<PAGE> 34
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. 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 and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and 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 Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
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<PAGE> 35
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3), (4) and (5) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated 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.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or
a nominee thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a
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<PAGE> 36
Global Security or any portion thereof shall be registered in such names as
the Depositary for such Global Security shall direct.
(4) So long as all of the Securities of any series are evidenced by a
Global Security, the Security Registrar and the Trustee shall be entitled to
deal with the Depositary for all purposes of this Indenture with respect to
Securities of such series (including the payment of principal of (and
premium, if any) and interest on any such Global Security and the giving of
instructions, notices and communications hereunder) as the sole holder of
such Global Security.
(5) 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 Section, Section 304, 306, 906 or
1107 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.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and 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 and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any
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<PAGE> 37
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 that
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 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the
manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
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<PAGE> 38
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of 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, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company 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 the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) 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, 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
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authen-
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<PAGE> 40
ticating Agent under Section 614 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 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Fourteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property (other than a conservator or other similar official in respect of a
Bank), or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(2) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any
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bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property (other
than a conservator or other similar official in respect of a Bank), 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, or the taking of corporate action by the Company in furtherance of any
such action; or
(3) any other Event of Default provided with respect to Securities of that
series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the Securities
of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
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
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(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company shall fail 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, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Security or Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
"Default", wherever used herein with respect to Securities of any series,
means any one of the following events (whatever the reason for such 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 governmental body);
(A) an Event of Default with respect to any Securities of that series;
or
(B) the events referred to in subsections 503(1) through (2) above with
respect to any Securities of that series; or
(C) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose
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performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely
for the benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 30 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(D) any other Default provided with respect to Securities of that
series.
If a Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed, at the sole expense of
the Company, to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. 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; 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 Trustee 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture 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 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, 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 506. Application of Money Collected.
Any money collected by the Trustee 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 on account of principal or any premium
or 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 under Section 607;
and
SECOND: Subject to Article Fourteen, to the payment of the amounts then
due and unpaid for principal of and any premium and interest on the
Securities 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 Securities for principal and
any premium and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security 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 or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such 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
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(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, 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 of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
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 rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Default shall impair any such
right or remedy or constitute a waiver of any such Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
Subject to Article Six hereof, the Holders of a majority in principal
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, including reasonable
attorneys' fees, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act. The provisions of
this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders of an aggregate more than 10% in principal amount of the Securities then
outstanding, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security, on or after the
respective due dates expressed in such Security.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, 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 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 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.
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SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
and such default is known to a Responsible Officer of the Trustee, the Trustee
shall give the Holders of Securities of such series notice of such default as
and to the extent provided by the Trust Indenture Act; provided, however, that
in the case of any default of the character specified in Clause (C) of the
definition of "Default" set forth in Section 503 with respect to Securities of
such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, a Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) 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, 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;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) 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 to take any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, request and rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such counsel
(to be confirmed in writing) 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;
(5) 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 which might be incurred by it in compliance with
such request or direction;
(6) 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, debenture, note, other evidence of indebtedness or other
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paper or document, but the Trustee, in its discretion, and at the Company's
sole expense, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(7) 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 the supervision of, or
any misconduct or negligence on the part of, any agent or attorney appointed
with due care by it hereunder; and
(8) the protections afforded to the Trustee under this Indenture shall
also be afforded to it in its capacity as Security Registrar and/or Paying
Agent, as the case may be.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and 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
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, 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 incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts 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;
(4) that the obligations of the Company under this Section 607 shall
survive the satisfaction and discharge of this Indenture; and
(5) that when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(1) or (2) hereof has occurred, such
expenses and the Trustee's compensation for such services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses
of administration under any Federal or State bankruptcy law.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the 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 Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its
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Corporate Trust Office in the Borough of Manhattan, The City of New York. 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 Trustee with respect to the Securities of any
series 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.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 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.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
bona fide 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, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series 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 Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. 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 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment in
full of all amounts owed to it pursuant to this Indenture, 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.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable
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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 Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
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 612. 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 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 with the same effect
as if such successor Trustee had itself authenticated such Securities.
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SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. 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 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State 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 the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent
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which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 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
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
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.
..............................
As Trustee
By...........................,
As Authenticating Agent
By............................
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than __________ and _____________ in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
preceding ___________ or ____________, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
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 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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 by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
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.
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Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than ___________ in each calendar year,
commencing in ____.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and 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 pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company 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 the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge 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 Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, 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 any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such
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transaction as having been incurred by the Company or such Subsidiary at the
time of such transaction, no Default, and no event which, after notice or
lapse of time or both, would become a Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Defaults or Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Defaults or Events of Default are
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to be for the benefit of less than all series of Securities, stating that
such additional Defaults or Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance
of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security
of any series created prior to the execution of such supplemental indenture
and entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; 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
611; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which 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 (9) shall
not adversely affect the interests of the Holders of Securities of any series
in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
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(1) change the Stated Maturity of the principal of, or any instalment of
principal of or 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 reduce the amount of the principal of an Original
Issue Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium 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 modify the provisions of this Indenture with respect
to the subordination of the Securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1008, 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 Out standing Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1008, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. 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 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Rights of Entitled Persons in Respect of Other Financial
Obligations.
Notwithstanding any provision in this Indenture or otherwise, the rights
of Entitled Persons in respect of Other Financial Obligations under this
Indenture and otherwise in respect of the Securities or any series of the
Securities may, at any time and from time to time, be modified in any respect or
eliminated without the consent of any Entitled Person in respect of Other
Financial Obligations.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company 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 Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and 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 action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
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) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities
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of that series, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(18),
901(2) or 901(7) for the benefit of the Holders of such series if before the
time for such compliance the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company, notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), 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 may be customarily
employed by the Trustee and 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. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
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The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
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 Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given 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 Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the identification (and,
in the case of partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if less than all
the Outstanding Securities of any series consisting of a single Security are
to be redeemed, the principal amount of the particular Security to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
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SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, instalments of 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 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. 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 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided for by the terms of
such Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; 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, 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 1203. Redemption of Securities for Sinking Fund.
Not less than __ days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than __ days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in
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the name of and at the expense of the Company in the manner provided in Section
1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations, and the
provisions of Article Fourteen shall cease to be effective, with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the direction and
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
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SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Sections 1006 through
1008, inclusive, and any covenants provided pursuant to Section 301(18), 901(2)
or 901(7) for the benefit of the Holders of such Securities, (2) the occurrence
of any event specified in Section 501(3) shall be deemed not to be or result in
an Event of Default, and (3) the occurrence of any event specified in Clause (C)
of the definition of "Default" set forth in Section 503 (with respect to any of
Sections 1006 through 1008, inclusive, and any such covenants provided pursuant
to Section 301(18), 901(2) or 901(7)) shall be deemed not to be or result in a
Default and (4) the provisions of Article Fourteen shall cease to be effective,
in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Clause (C) of the definition of "Default" set forth in Section
503) or Article Fourteen, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) in the case of
Securities denominated in a foreign currency, money in such foreign currency
or Foreign Government Obligations of the foreign government or governments
issuing such foreign currency which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, such
foreign currency in an amount, or (B) in the case of Securities denominated
in U.S. dollars, U.S. dollars or U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, U.S. dollars in an amount, or (C) a combination of
money and Foreign Government Obligations or U.S. Government Obligations (as
applicable), in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such
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other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities,
in accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or (ii)
an obligation of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not callable
or redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt. As used herein,
"Foreign Government Obligation" means any security denominated in a foreign
currency which is (i) a direct obligation of a foreign government or
governments for the payment of which the full faith and credit of such
foreign government or governments is pledged or (ii) an obligation of a
Person controlled or supervised by and acting as an agency or instrumentality
of such foreign government or governments the payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
foreign government, which, in either case (i) or (ii) is not callable or
redeemable at the option of the issuer thereof.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A)(x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (x) or
(y) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to
be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to occur
and (B) if Securities of such series Securities are then listed on the New
York Stock Exchange, to the effect that the Securities of such series will
not be delisted as a result of such election.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
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income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 501(1) and (2), at
any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Indebtedness shall have
occurred and be continuing, (B) no event of default with respect to any
Senior Debt shall have resulted in such Senior Indebtedness becoming, and
continuing to be, due and payable prior to the date on which it would
otherwise have become due and payable (unless payment of such Senior
Indebtedness has been made or duly provided for), and (C) no other event of
default with respect to any Senior Indebtedness shall have occurred and be
continuing permitting (after notice or lapse of time or both) the holders of
such Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money, U.S. Government Obligations and Foreign
Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money, U.S. Government Obligations and Foreign Government Obligations (including
the proceeds
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thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section and Section 1306, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section 1304
in respect of any Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law. Money, U.S.
Government Obligations and Foreign Government Obligations so held in trust shall
not be subject to the provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations or
Foreign Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations or Foreign Government Obligations held by
it as provided in Section 1304 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
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ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness.
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth, before the Holders of the Securities are entitled to receive any
payment on account of principal of (or premium, if any) or interest on the
Securities, and to that end the holders of Senior Indebtedness shall be entitled
to receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, including any
such payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Company being subordinated to the
payment of the Securities, which may be payable or deliverable in respect of the
Securities in any such case, proceeding, dissolution, liquidation or other
winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities, before all Senior Indebtedness is paid in full or payment thereof
provided for, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to a Responsible Officer of the Trustee or,
as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior
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Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
SECTION 1403. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Indebtedness shall
be entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Indebtedness or provision shall be made for such
payment in money or money's worth, before the Holders of the Securities are
entitled to receive any payment (including any payment which may be payable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) by the Company on account of the
principal of (or premium, if any) or interest on the Securities or on account of
the purchase or other acquisition of Securities; provided, however, that nothing
in this Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article Twelve by delivering and crediting pursuant to Section
1202 Securities of such series which have been acquired (upon redemption or
otherwise) prior to such declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 1402 would be applicable.
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SECTION 1404. No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Indebtedness
beyond any applicable grace period with respect thereto, or in the event that
any event of default with respect to any Senior Indebtedness shall have occurred
and be continuing permitting the holders of such Senior Indebtedness (or a
trustee on behalf of the holders thereof) to declare such Senior Indebtedness
due and payable prior to the date on which it would otherwise have become due
and payable, unless and until such event of default shall have been cured or
waived or shall have ceased to exist and such acceleration shall have been
rescinded or annulled, or (b) in the event any judicial proceeding shall be
pending with respect to any such default in payment or event of default, then no
payment (including any payment which may be payable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities) shall be made by the Company on account of principal of (or premium,
if any) or interest on the Securities or on account of the purchase or other
acquisition of Securities; provided, however, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article
Twelve by delivering and crediting pursuant to Section 1202 Securities which
have been acquired (upon redemption or otherwise) prior to such default in
payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 1402 would be applicable.
SECTION 1405. Payment Permitted in Certain Situations.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1402 or under the conditions
described in Section 1403 or 1404, from making payments at any time of principal
of (and premium, if any) or interest on the Securities.
SECTION 1406. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all 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 all indebtedness of the
Company which by its express terms is subordinated to indebtedness of the
Company to substantially the same extent as the Securities are subordinated and
is
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entitled to like rights of subrogation) 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 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 Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1407. 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 (and, in the case of Section 1415,
Entitled Persons in respect of Other Financial Obligations) 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 among the Company, its
creditors other than holders of Senior Indebtedness, Entitled Persons in respect
of Other Financial Obligations and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional (and which, subject to the
rights under this Article of the holders of Senior Indebtedness and Entitled
Persons in respect of Other Financial Obligations, is intended to rank equally
with all other general obligations of the Company), to pay to the Holders of the
Securities the principal of (and premium, if any) and interest on the Securities
as and when the same shall become due and payable in accordance with their
terms; (b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness and Entitled Persons in respect of Other Financial Obligations; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness and under Section 1415 of Entitled Persons in respect of
Other Financial Obligations, to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 1408. Trustee to Effectuate Subordination.
Each Holder of a Security, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
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SECTION 1409. 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 Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the 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 Company and any other Person.
SECTION 1410. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee therefor or from any Entitled Persons in respect of Other Financial
Obligations; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee therefor) or an Entitled
Person in respect of Other Financial Obligations to establish that such notice
has been given by a holder of Senior Indebtedness (or a trustee therefor) or an
Entitled Person in respect of Other Financial Obligations. 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 or an Entitled
Person in respect of Other Financial Obligations to participate in any payment
or distribution pursuant to this Article, the Trustee may, but shall not be
required to, request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior
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Indebtedness or other Financial Obligations 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 1411. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 601, 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 insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or 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 Senior Indebtedness and other indebtedness of the
Company and the Entitled Persons in respect of Other Financial Obligations, 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 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness or
Entitled Persons.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness or Entitled Persons in respect of Other Financial
Obligations and shall not be liable to any such holders or creditors if it shall
in good faith pay over or distribute to Holders of Securities or to the Company
or to any other Person cash, property or securities to which any holders of
Senior Indebtedness or Entitled Persons in respect of Other Financial
Obligations shall be entitled by virtue of this Article or otherwise.
SECTION 1413. Rights of Trustee as Holder of Senior Indebtedness or Entitled
Person; 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 which may at
any time be held by it and with respect to any Other Financial Obligations owed
to the Trustee as an Entitled Person, to the same extent as any other holder of
Senior Indebtedness or Entitled Person in respect of Other Financial
Obligations, as the case may be, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder or Entitled Person.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
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SECTION 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1413 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1415. Securities to Rank Pari Passu with Each Other; Payment of
Proceeds in Certain Cases.
(a) Subject to the provisions of this Section and to any provisions
established or determined with respect to Securities of any series pursuant to
Section 301, the Securities shall rank pari passu in right of payment with each
other.
(b) Upon the occurrence of any of the events specified in clauses (a), (b)
and (c) of the first paragraph of Section 1402, the provisions of that Section
shall be given effect on a pro rata basis to determine the amount of cash,
property or securities which may be payable or deliverable as between the
holders of Senior Indebtedness, on the one hand, and the Holders of Securities,
on the other hand.
(c) If, after giving effect to the provisions of Section 1402, Section
1406 and the respective corresponding provisions of each indenture or other
instrument or document establishing or governing the terms of any Senior
Indebtedness on such pro rata basis, any amount of cash, property or securities
shall be available for payment or distribution in respect of the Securities
("Excess Proceeds"), and any Entitled Persons in respect of Other Financial
Obligations shall not have received payment in full of all amounts due or to
become due on or in respect of such Other Financial Obligations (and provision
shall not have been made for such payment in money or money's worth), then such
Excess Proceeds shall first be applied (ratably with any amount of cash,
property or securities available for payment or distribution in respect of any
other indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations) to pay or provide for the payment of the
Other Financial Obligations remaining unpaid, to the extent necessary to pay all
Other Financial Obligations in full, after giving effect to any concurrent
payment or distribution to or for Entitled Persons in respect of Other Financial
Obligations. Any Excess Proceeds remaining after the payment (or provision for
payment) in full of all Other Financial Obligations shall be available for
payment or distribution in respect of the Securities.
(d) In the event that, notwithstanding the foregoing provisions of
subsection (c) of this Section, after the occurrence of any of the events
specified in clauses (a), (b) and (c) of the first paragraph of Section 1402,
the Trustee or Holder of any Security shall have received any payment or
distribution of assets of the Company of any kind or character, whether in
-71-
<PAGE> 81
cash, property or securities, before all Other Financial Obligations are paid in
full or payment thereof duly provided for, and if such fact shall, at or prior
to the time of such payment or distribution, have been made known to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event, subject to any obligation that the Trustee or such Holder may
have pursuant to Section 1402, such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for payment in accordance with subsection
(c).
(e) Subject to the payment in full of all Other Financial Obligations, the
Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to Entitled Persons in respect of Other Financial Obligations
pursuant to subsection (c) or (d) of this Section (equally and ratably with the
holders of all indebtedness of the Company that by its express terms provides
for the payment over of amounts corresponding to Excess Proceeds to Entitled
Persons in respect of Other Financial Obligations and is entitled to like rights
of subrogation) to the rights of the Entitled Persons in respect of Other
Financial Obligations to receive payments and distributions of cash, property
and securities applicable to the Other Financial Obligations until the principal
of (and premium, if any) and interest on the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to Entitled
Persons in respect of Other Financial Obligations of any cash, property or
securities to which Holders of the Securities or the Trustee would be entitled
except for the provisions of this Section, and no payments over pursuant to the
provisions of this Section to Entitled Persons in respect of Other Financial
Obligations by Holders of Securities or the Trustee, shall, as among the
Company, its creditors other than Entitled Persons in respect of Other Financial
Obligations and the Holders of Securities be deemed to be a payment or
distribution by the Company to or on account of the Other Financial Obligations.
(f) The provisions of subsections (c), (d) and (e) of this Section 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 Entitled Persons in respect
of Other Financial Obligations, on the other hand, after giving effect to the
rights of the holders of Senior Indebtedness, as provided in this Article.
Nothing contained in subsections (c), (d) and (e) of this Section is intended to
or shall affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than Entitled Persons in respect
of Other Financial Obligations.
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.
-72-
<PAGE> 82
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.
[SEAL] DIME BANCORP, INC.
By_______________________________
Attest:
______________________________
________________________________,
as Trustee
By_______________________________
Attest:
______________________________
-73-
<PAGE> 83
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of __________ , _____ , before me personally came
_________________________ , to me known, who, being by me duly sworn, did depose
and say that he is _____________________ of Dime Bancorp, Inc, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
__________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _________ , _____ , before me personally came
________________________ , to me known, who, being by me duly sworn, did depose
and say that he is ______________________ of _________________, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
__________________________
-74-
<PAGE> 1
Exhibit 5
May 28, 1999
Dime Bancorp, Inc.,
589 Fifth Avenue,
New York, New York 10017.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933
(the "Act") of $200,000,000 aggregate amount of senior debt securities (the
"Senior Debt Securities") and subordinated debt securities (the "Subordinated
Debt Securities" and, collectively with the Senior Debt Securities, the
"Securities") of Dime Bancorp, Inc., a Delaware corporation (the "Company"), we,
as your counsel, have examined such corporate records, certificates and other
documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our
opinion:
(1) With respect to the Senior Debt Securities, when the
registration statement relating to the Securities (the "Registration
Statement") has become effective under the Act, the indenture relating to
the
<PAGE> 2
Dime Bancorp, Inc. -2-
Senior Debt Securities (the "Senior Indenture") has been duly executed and
delivered, the terms of the Senior Debt Securities and of their issuance
and sale have been duly established in conformity with the Senior
Indenture so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company, and the
Senior Debt Securities have been duly executed and authenticated in
accordance with the Senior Indenture and issued and sold as contemplated
in the Registration Statement, the Senior Debt Securities will constitute
valid and legally binding obligations of the Company, 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.
(2) With respect to the Subordinated Debt Securities, when the
Registration Statement has become effective under the Act, the indenture
relating to the Subordinated Debt Securities (the "Subordinated
Indenture") has been duly executed and delivered, the
<PAGE> 3
Dime Bancorp, Inc. -3-
terms of the Subordinated Debt Securities and of their issuance and sale
have been duly established in conformity with the Subordinated Indenture
so as not to violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company and so as
to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, and the
Subordinated Debt Securities have been duly executed and authenticated in
accordance with the Subordinated Indenture and issued and sold as
contemplated in the Registration Statement, the Subordinated Debt
Securities will constitute valid and legally binding obligations of the
Company, 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.
We note that, as of the date of this opinion, a judgment for money
in an action based on a Security denominated in a foreign currency or currency
unit in a Federal or state court in the United States ordinarily would be
enforced in the United States only in United States dollars. The date used to
determine the rate of conversion
<PAGE> 4
Dime Bancorp, Inc. -4-
of the foreign currency or currency unit in which a particular Security is
denominated into United States dollars will depend upon various factors,
including which court renders the judgment. In the case of a Security
denominated in a foreign currency, a state court in the State of New York
rendering a judgment on such Security would be required under Section 27 of the
New York Judiciary Law to render such judgment in the foreign currency in which
the Security is denominated, and such judgment would be converted into United
States dollars at the exchange rate prevailing on the date of entry of the
judgment.
The foregoing opinion is limited to 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, and we are expressing no opinion as to the effect of the laws
of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
the Debt Securities" in the Prospectus. In giving such consent, we
<PAGE> 5
Dime Bancorp, Inc. -5-
do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell
<PAGE> 1
Exhibit 12
RATIO OF EARNINGS TO FIXED CHARGES
Dime Bancorp, Inc. and Subsidiaries
Ratio of Earnings to Fixed Charges
(Dollars in thousands)
<TABLE>
<CAPTION>
Three Months Year
Ended Ended
March 31, December 31,
----------------------- --------------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Excluding interest
on deposits from
fixed charges
Earnings:
Income before
income taxes and
extraordinary items $ 93,599 $ 84,189 $354,622 $198,208 $154,240 $109,912 $ 67,703
Fixed charges 87,889 100,945 360,903 348,297 364,093 429,715 309,193
-------- -------- -------- -------- -------- -------- --------
Total earnings as
adjusted $181,488 $185,134 $715,525 $546,505 $518,333 $539,627 $376,896
======== ======== ======== ======== ======== ======== ========
Fixed charges:
Interest expense on
borrowed funds $ 84,273 $ 97,860 $347,825 $340,394 $358,187 $423,053 $303,216
Portion of rent
expense deemed
representative of
interest factor (1) 3,616 3,085 13,078 7,903 5,906 6,662 5,977
Total fixed charges $ 87,889 $100,945 $360,903 $348,297 $364,093 $429,715 $309,193
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to
fixed charges
excluding interest
on deposits 2.06x 1.83x 1.98x 1.57x 1.42x 1.26x 1.22x
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
Three Months Year
Ended Ended
March 31, December 31,
----------------------- ----------------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
-------- -------- ---------- ---------- ---------- ---------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Including interest
on deposits in
fixed charges
Earnings:
Income before
income taxes and
extraordinary items $ 93,599 $ 84,189 $ 354,622 $ 198,208 $ 154,240 $ 109,912 $ 67,703
Fixed charges 207,731 239,973 906,730 907,656 895,309 954,167 713,762
-------- -------- ---------- ---------- ---------- ---------- --------
Total earnings as
adjusted $301,330 $324,162 $1,261,352 $1,105,864 $1,049,549 $1,064,079 $781,465
======== ======== ========== ========== ========== ========== ========
Fixed charges:
Interest expense on
borrowed funds $ 84,273 $ 97,860 $ 347,825 $ 340,394 $ 358,187 $ 423,053 $303,216
Interest expense of
deposits 119,842 139,028 545,827 559,359 531,216 524,452 404,569
Portion of rent
expense deemed
representative of
interest factor (1) 3,616 3,085 13,078 7,903 5,906 6,662 5,977
-------- -------- ---------- ---------- ---------- ---------- --------
Total fixed charges $207,731 $239,973 $ 906,730 $ 907,656 $ 895,309 $ 954,167 $713,762
======== ======== ========== ========== ========== ========== ========
Ratio of earnings to
fixed charges
including interest on
deposits 1.45x 1.35x 1.39x 1.22x 1.17x 1.12x 1.09x
</TABLE>
(1) Represents one-third of total rent expense.
<PAGE> 1
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Dime Bancorp, Inc.:
We consent to the use of our report dated January 21, 1999, incorporated by
reference in Pre-Effective Amendment No. 1 to the Registration Statement on Form
S-3 of Dime Bancorp, Inc., relating to our audit of the consolidated statements
of financial condition of Dime Bancorp, Inc. and subsidiaries as of December 31,
1998 and 1997, and the related consolidated statements of income, changes in
stockholders' equity, cash flows and comprehensive income for each of the years
in the three-year period ended December 31, 1998, which report appears in the
Dime Bancorp, Inc. Annual Report on Form 10-K for the year ended December 31,
1998, and to the reference to our firm under the heading "Experts" in the
Registration Statement.
/s/ KPMG LLP
New York, New York
May 28, 1999
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_____
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 SOUTH COLLEGE STREET, CHARLOTTE, NORTH CAROLINA 28288-0630
(Address of Principal Executive Offices) (Zip Code)
DIME BANCORP, INC
(Name of Obligor)
DELAWARE 11-3197414
(State of Incorporation) (I.R.S. Employer
Identification No.)
589 FIFTH AVENUE, NEW YORK, NY 10017
(Address of Principal Executive Offices) (Zip Code)
DEBT SECURITIES
(Title of Indenture Securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH
IT IS SUBJECT:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
Furnish the following information as to each class of voting securities of
the trustee:
COL. A COL. B
------ ------
Title of Class Amount Outstanding
Not applicable
ITEM 4. TRUSTEESHIP UNDER OTHER INDENTURES:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE
OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not Applicable
<PAGE> 3
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D.
------ ------ ------ -------
<S> <C> <C> <C>
PERCENTAGE OF VOTING
AMOUNT OWNED SECURITIES REPRESENTED
NAME OF OWNER TITLE OF CLASS BENEFICIALLY BY AMOUNT GIVEN IN COL. C
Not Applicable
</TABLE>
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D.
------ ------ ------ -------
<S> <C> <C> <C>
PERCENTAGE OF VOTING
AMOUNT OWNED SECURITIES REPRESENTED
NAME OF OWNER TITLE OF CLASS BENEFICIALLY BY AMOUNT GIVEN IN COL. C
Not Applicable
</TABLE>
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR THE OBLIGATIONS IN DEFAULT BY
THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D.
------ ------ ------ -------
<S> <C> <C> <C>
WHETHER THE AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
SECURITIES ARE OR HELD AS COLLATERAL REPRESENTED BY
VOTING OR NON VOTING OBLIGATIONS IN DEFAULT BY AMT GIVEN IN COL C
TRUSTEE
Not Applicable
</TABLE>
ITEM 9. SECURITIES OF THE UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER ANY
OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
2
<PAGE> 4
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
COL. A. COL. B. COL. C. COL. D.
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
NAME OF OR HELD AS COLLATERAL REPRESENTED BY
ISSUER AND AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE COL. C.
- --------------------------------------------------------------------------------
Not applicable
</TABLE>
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
COL. A. COL. B. COL. C. COL. D.
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
AMOUNT OWNED BENEFICIALLY PERCENT OF VOTING
NAME OF OR HELD AS COLLATERAL SECURITIES
ISSUER AND AMOUNT SECURITY FOR OBLIGATIONS REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE GIVEN IN COL. C.
- --------------------------------------------------------------------------------
Not Applicable
</TABLE>
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
COL. A. COL. B. COL. C. COL. D.
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
NAME OF OR HELD AS COLLATERAL REPRESENTED BY
ISSUER AND AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE COL. C.
- --------------------------------------------------------------------------------
Not Applicable
</TABLE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
COL. A. COL. B. COL. C.
- --------------------------------------------------------------------------------
<S> <C> <C>
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- --------------------------------------------------------------------------------
Not Applicable
</TABLE>
3
<PAGE> 5
ITEM 13. DEFAULTS BY THE OBLIGOR.
(a) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None
(b) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not Applicable
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not Applicable
ITEM 16. LISTS OF EXHIBITS.
1* -COPY OF ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN EFFECT.
2 -NO CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE BUSINESS IS
FURNISHED SINCE THIS AUTHORITY IS CONTAINED IN THE ARTICLES OF
ASSOCIATION OF THE TRUSTEE.
3* -COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS.
4* -COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, AS NOW IN EFFECT.
5 -NOT APPLICABLE.
6 -THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321 (B) OF THE ACT.
7* -A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO THE LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR
EXAMINING AUTHORITY.
8 -NOT APPLICABLE
9 -NOT APPLICABLE
- ----------
* EXHIBITS THUS DESIGNATED HAVE HERETOFORE BEEN FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION, HAVE NOT BEEN AMENDED SINCE FILING AND ARE INCORPORATED
HEREIN BY REFERENCE (SEE EXHIBIT T-1 REGISTRATION NUMBER 333-79101).
IN ANSWERING ANY ITEM IN THIS STATEMENT OF ELIGIBILITY AND QUALIFICATION
WHICH RELATES TO MATTERS PECULIARLY WITHIN THE KNOWLEDGE OF THE OBLIGOR OR OF
ITS DIRECTORS OR OFFICERS, OR AN UNDERWRITER FOR THE OBLIGOR, THE UNDERSIGNED,
FIRST UNION NATIONAL BANK, HAS RELIED UPON INFORMATION FURNISHED TO IT BY THE
OBLIGOR OR SUCH UNDERWRITER.
4
<PAGE> 6
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, FIRST UNION NATIONAL BANK, A NATIONAL BANKING ASSOCIATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES, HAS DULY CAUSED THIS STATEMENT OF
ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, ALL IN THE CITY OF MORRISTOWN, AND STATE OF NEW JERSEY, ON THE 28TH
DAY OF MAY, 1999.
FIRST UNION NATIONAL BANK
(TRUSTEE)
(CORPORATE SEAL)
BY: /S/ STEPHANIE ROCHE
------------------------------
VICE PRESIDENT
5
<PAGE> 7
EXHIBIT T-6
CONSENT OF TRUSTEE
PURSUANT TO THE REQUIREMENTS OF SECTION 321 (B) OF THE TRUST INDENTURE ACT
OF 1939, AND IN CONNECTION WITH THE PROPOSED ISSUE OF DIME BANCORP, INC., WE
HEREBY CONSENT THAT REPORTS OF EXAMINATIONS BY FEDERAL, STATE, TERRITORIAL OR
DISTRICT AUTHORITIES MAY BE FURNISHED BY SUCH AUTHORITIES TO THE SECURITIES AND
EXCHANGE COMMISSION UPON REQUEST THEREFOR.
FIRST UNION NATIONAL BANK
BY: /S/ STEPHANIE ROCHE
------------------------------
VICE PRESIDENT
MORRISTOWN, NJ
MAY 28, 1999
