Exhibit 1
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DIME CAPITAL TRUST I
9.33% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
PURCHASE AGREEMENT
Dated: April 29, 1997
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TABLE OF CONTENTS
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SECTION 1. Representations and Warranties......................... 3
(a) Representations and Warranties of the Offerors.......... 3
(i) Compliance with Registration Requirements.......... 3
(ii) Incorporated Documents............................. 4
(iii) Independent Accountants............................ 4
(iv) Financial Statements............................... 5
(v) No Material Adverse Change in Business............. 5
(vi) Good Standing of the Company....................... 5
(vii) Good Standing of Subsidiaries...................... 5
(viii) Capitalization..................................... 6
(ix) Good Standing of the Trust......................... 6
(x) Authorization of Common Securities................. 6
(xi) Authorization of Capital Securities................ 7
(xii) Authorization of Agreement......................... 7
(xiii) Authorization of Trust Agreement................... 7
(xiv) Authorization of Guarantee......................... 7
(xv) Authorization of Indenture......................... 7
(xvi) Authorization of Junior Subordinated Debentures.... 7
(xvii) Administrative Trustees............................ 8
(xix) Absence of Defaults and Conflicts.................. 8
(xxii) Absence of Labor Dispute........................... 9
(xxiii) Absence of Proceedings............................. 9
(xxiii) Exhibits........................................... 9
(xxv) Absence of Further Requirements.................... 9
(xxvi) Possession of Licenses and Permits................. 9
(xxvii) Title to Property.................................. 10
(xxix) Environmental Laws................................. 10
(xxx) Not an Investment Company.......................... 11
(xxxi) No Manipulation.................................... 11
(b) Officer's Certificates................................. 11
SECTION 2. Sale and Delivery to Underwriters; Closing............ 11
(a) Capital Securities....................................... 11
(b) Payment.................................................. 11
(c) Compensation of Underwriters............................. 12
(d) Denominations; Registration.............................. 12
SECTION 3. Covenants of the Offerors............................. 12
(a) Compliance with Securities Regulations and
Commission Requests.................................... 12
(b) Filing of Amendments..................................... 13
(c) Delivery of Registration Statements...................... 13
(d) Delivery of Prospectuses................................. 13
(e) Continued Compliance with Securities Laws................ 13
i
(f) Blue Sky Qualifications.................................. 14
(g) Rule 158................................................. 14
(h) Restriction on Sale of Securities........................ 14
(i) Reporting Requirements................................... 15
(k) DTC Settlement........................................... 15
(l) Use of Proceeds.......................................... 15
SECTION 4. Payment of Expenses................................... 15
(a) Expenses................................................. 15
(b) Termination of Agreement................................. 16
SECTION 5. Conditions of Underwriters' Obligations............... 16
(a) Effectiveness of Registration Statement.................. 16
(b) Opinion of Counsel for Company........................... 16
(c) Opinion of Special Delaware Counsel to the Offerors...... 16
(d) Opinion of Counsel for The Chase Manhattan Bank
and Chase Manhattan Bank Delaware....................... 16
(e) Opinion of Special Tax Counsel to Offerors............... 17
(f) Opinion of Counsel for Underwriters...................... 17
(g) Certificates............................................. 17
(h) Accountant's Comfort Letter.............................. 18
(i) Bring-down Comfort Letter................................ 18
(j) Maintenance of Rating.................................... 18
(k) No Objection............................................. 18
(l) Additional Documents..................................... 18
(m) Termination of Agreement................................. 18
SECTION 6. Indemnification........................................ 19
(a) Indemnification of the Underwriters...................... 19
(b) Indemnification by the Underwriters...................... 20
(c) Actions against Parties; Notification.................... 20
SECTION 7. Contribution........................................... 21
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery..................................... 22
SECTION 9. Termination of Agreement............................... 22
(a) Termination; General..................................... 23
(b) Liabilities.............................................. 23
SECTION 10. Default by One or More of the Underwriters............ 23
SECTION 11. Default by the Offerors............................... 24
SECTION 12. Notices............................................... 24
SECTION 13. Parties............................................... 24
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SECTION 14. GOVERNING LAW AND TIME................................ 24
SECTION 15. Effect of Headings.................................... 24
SCHEDULE A.
SCHEDULE B.
SCHEDULE C.
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DIME CAPITAL TRUST I
9.33% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
PURCHASE AGREEMENT
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April 29, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
BT SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.,
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Dime Capital Trust I (the "Trust"), a statutory business trust organized
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under the Business Trust Act (the "Delaware Act") of the State of Delaware
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(Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801 et seq.)),
and Dime Bancorp, Inc., a Delaware corporation (the "Company" and, together with
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the Trust, the "Offerors"), confirm their agreement as set forth herein with
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), BT Securities Corporation ("BT"), ▇▇▇▇▇▇ Brothers Inc.
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("▇▇▇▇▇▇") and each of the other underwriters named in Schedule A hereto
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(collectively, the "Underwriters," which term shall also include any underwriter
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substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ and ▇▇▇▇▇▇ are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Trust and the
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purchase by the Underwriters, acting severally and not jointly, of $200,000,000
in aggregate liquidation amount of 9.33% Capital Securities, Series A
(liquidation amount $1,000 per Capital Security), of the Trust (the "Capital
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Securities") on the terms and conditions hereinafter set forth. The Capital
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Securities will be guaranteed on a subordinated basis by the Company with
respect to distributions and payments upon liquidation, redemption and otherwise
pursuant to the Series A Guarantee (the "Guarantee"), to be dated on or about
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May 6, 1997, between the Company and The Chase Manhattan Bank, as trustee (the
"Guarantee Trustee"). The Capital Securities issued in book-entry form will be
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issued to Cede & Co., as nominee of the Depository Trust Company
("DTC"), pursuant to a letter agreement to be dated as of the Closing Time (as
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defined in Section 2(b)) (the "DTC Agreement"), among the Trust, the Guarantee
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Trustee and DTC.
The entire proceeds from the sale of the Capital Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), and will be used by the Trust
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to purchase $206,186,000 aggregate principal amount of 9.33% Junior Subordinated
Deferrable Interest Debentures, Series A, due 2027 issued by the Company (the
"Junior Subordinated Debentures"). The Capital Securities and the Common
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Securities will be issued pursuant to the Amended and Restated Trust Agreement,
to be dated on or about May 6, 1997 (the "Trust Agreement"), among the Company,
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as depositor, the Administrative Trustees named therein (the "Administrative
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Trustees"), The Chase Manhattan Bank, as property trustee (the "Property
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Trustee"), and Chase Manhattan Bank Delaware, as Delaware trustee (the "Delaware
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Trustee," and, together with the Property Trustee and the Administrative
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Trustees, the "Trustees"). The Junior Subordinated Debentures will be issued
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pursuant to an indenture, to be dated on or about May 6, 1997 (the "Indenture"),
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between the Company and The Chase Manhattan Bank, as trustee (the "Debenture
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Trustee").
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The Capital Securities, the Guarantee and the Junior Subordinated
Debentures are hereinafter collectively referred to as the "Securities." The
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Indenture, the Trust Agreement, the Guarantee, the DTC Agreement and this
Agreement are hereinafter referred to collectively as the "Operative Documents."
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The Offerors understand that the Underwriters propose to make a public
offering of the Capital Securities (as guaranteed by the Guarantee) as soon as
the Representatives deem advisable after this Agreement has been executed and
delivered and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act").
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The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-24629) covering the
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registration of preferred securities of the Trust and Dime Capital Trust II,
Company guarantees with respect to such preferred securities and junior
subordinated deferrable interest debentures of the Company, including the
Securities, from time to time in accordance with Rule 415 under the Securities
Act of 1933, as amended (the "1933 Act"), including the related preliminary
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prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Offerors will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
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regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
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and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
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(ii) if the Offerors have elected to rely upon Rule 434 ("Rule 434") of the 1933
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Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
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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"
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or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
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Information." Each prospectus used before such registration statement became
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effective, and any prospectus that
2
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
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registration statement, including the exhibits thereto, schedules thereto, if
any, and the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time it became effective and including the
Rule 430A Information or the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
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to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
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462(b) Registration Statement," and after such filing the term "Registration
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Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities, consists
of (i) a "Base Prospectus," which is the prospectus included in the Registration
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Statement, and (ii) a "Prospectus Supplement," relating specifically to the
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offering of the Securities, in the form first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b) of the 1933 Act, and the Base
Prospectus and the Prospectus Supplement are collectively referred to herein as
the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer
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to the preliminary prospectus dated April 25, 1997 together with the Term Sheet,
and all references in this Agreement to the date of the Prospectus shall mean
the date of the Term Sheet.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
----
Act"), which is incorporated by reference in the Registration Statement, such
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preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties of the Offerors. The Offerors jointly
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and severally represent and warrant to each Underwriter as of the date
hereof and as of the Closing Time referred to in Section 2(b) hereof, as
follows:
(i) Compliance with Registration Requirements. The Offerors meet
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the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Offerors, are contemplated by the
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Commission and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was filed
and at the Closing Time, included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Offerors will comply with the requirements of Rule 434.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, any
post-effective amendment to the Registration Statement, the Prospectus
or any amendment or supplement to the Prospectus made in reliance upon
and in conformity with information furnished to the Company or the
Trust in writing by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly
for use in the Registration Statement, the Prospectus or any such
amendment or supplement.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and
the 1933 Act Regulations.
(ii) Incorporated Documents. The documents incorporated or deemed
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to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
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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
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financial statements and supporting schedules included in the
Registration
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Statement are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iv) Financial Statements. The consolidated statements of
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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
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consolidated financial position, results of operations, changes in
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries at the dates indicated or for the periods
specified, as the case may be, subject in the case of unaudited
balance sheets and statements to normal year-end audit adjustments;
said Financial Statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
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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
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dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change, or development involving a
prospective material adverse change, in the financial condition,
results of operation or stockholders' equity of the Trust, or the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
----------------
Effect"), (B) there have been no transactions entered into by the
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Trust, the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Trust, or the Company and its subsidiaries, considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Trust or the Company on any class
of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
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organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business in all material respects as described in the Prospectus and
to enter into and perform its obligations under the Operative
Documents; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. The Dime Savings Bank of New
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York, FSB (the "Bank"), has been duly organized and is validly
----
existing as a
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federally chartered stock savings bank and is a member in good
standing of the Federal Home Loan Bank of New York; the Bank's deposit
accounts are insured up to applicable limits by the Savings
Association Insurance Fund or the Bank Insurance Fund, each of the
Federal Deposit Insurance Corporation; and no proceeding for the
termination or revocation of such insurance is pending or, to the
knowledge of the Company or the Bank, threatened. The Bank is the
only "significant subsidiary" of the Company (as such term is defined
----------------------
in Rule 1-02 of Regulation S-X) and has corporate power and authority
to own, lease and operate its properties and to conduct its business
in all material respects as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of the Bank has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of the Bank
was issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary. The only subsidiaries of the
Company are the subsidiaries listed on Schedule B hereto.
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(viii) Capitalization. The Company had at the date indicated a
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duly authorized and outstanding capitalization as set forth in the
Registration Statement.
(ix) Good Standing of the Trust. The Trust has been duly created
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and is validly existing as a business trust in good standing under the
Delaware Act and, at the Closing Time, will have the power and
authority to own, lease and operate its properties and to conduct its
business in all material respects as described in the Prospectus and
to enter into and perform its obligations under the Operative
Documents, as applicable, and the Capital Securities; the Trust is not
a party to or otherwise bound by any material agreement other than
this Agreement and those described in the Registration Statement; and
the Trust is and will be treated as a consolidated subsidiary of the
Company under GAAP.
(x) Authorization of Common Securities. At the Closing Time, the
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Common Securities will have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company
against payment therefor as set forth herein, will be validly issued
and will represent undivided beneficial interests in the assets of the
Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
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(xi) Authorization of Capital Securities. As of the Closing Time,
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the Capital Securities will have been duly authorized by the Trust
and, when issued and delivered against payment therefor as provided
herein, will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will
conform in all material respects to the description thereof contained
in the Registration Statement; and the issuance of the Capital
Securities will not be subject to preemptive or other similar rights.
(xii) Authorization of Agreement. This Agreement has been duly
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authorized, executed and delivered by the Offerors.
(xiii) Authorization of Trust Agreement. The Trust Agreement has
--------------------------------
been duly authorized by the Company and duly qualified under the 1939
Act and, at the Closing Time, will have been duly executed and
delivered by the Company and the Trustees, and assuming due
authorization, execution and delivery of the Trust Agreement by the
Trustees, the Trust Agreement will, at the Closing Time, be a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to (A) the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally, (B) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and (C)
general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) and the availability
of equitable remedies (collectively, the "Enforceability Exceptions").
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(xiv) Authorization of Guarantee. The Guarantee has been duly
--------------------------
authorized by the Company and duly qualified under the 1939 Act and,
at the Closing Time, the Guarantee will have been duly executed and
delivered by the Company, and will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the Enforceability Exceptions;
and the Guarantee will conform in all material respects to the
descriptions thereof in the Registration Statement.
(xv) Authorization of Indenture. The Indenture has been duly
--------------------------
authorized by the Company and duly qualified under the 1939 Act and,
at the Closing Time, will have been duly executed and delivered by the
Company and will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject to the Enforceability Exceptions.
(xvi) Authorization of Junior Subordinated Debentures. The Junior
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Subordinated Debentures have been duly authorized by the Company and,
at the Closing Time, will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered to the Trust against payment therefor as described in the
Registration Statement, will constitute valid and binding obligations
of the Company enforceable against the
7
Company in accordance with their terms, subject to the Enforceability
Exceptions; and the Junior Subordinated Debentures will be in the form
contemplated by, and entitled to the benefits of, the Indenture and
will conform in all material respects to the description thereof in
the Registration Statement.
(xvii) Administrative Trustees. At the Closing Time, each of the
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Administrative Trustees of the Trust will be an officer of the Company
and will have been duly authorized by the Company to execute and
deliver the Trust Agreement.
(xviii) Absence of Defaults and Conflicts. The Trust is not in
---------------------------------
violation of the certificate of trust filed with the State of Delaware
on April 4, 1997 (the "Trust Certificate") or the Trust Agreement,
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neither the Company nor any of its subsidiaries is in violation of its
charter or by-laws, and none of them are in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties or assets may be subject (collectively, "Agreements and
--------------
Instruments"), except for such defaults that would not result in a
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Material Adverse Effect; the execution and delivery of the Operative
Documents by the Trust or the Company, as the case may be, the
issuance and delivery of the Securities, the consummation by the
Offerors of the transactions contemplated in the Operative Documents,
and compliance by the Offerors with their respective obligations under
the Operative Documents to which they are party have been duly
authorized by all necessary corporate action on the part of the
Company and, at the Closing Time, will have been duly authorized by
all necessary action on the part of the Trust, and do not and will
not, whether with or without the giving of notice or passage of time
or both, (A) result in any violation of the charter or by-laws of the
Company or any subsidiary thereof or the Trust Agreement or the Trust
Certificate or (B) conflict with or constitute a breach of any of the
terms or provisions of, or constitute a default or Repayment Event (as
defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Trust,
the Company or any subsidiary thereof pursuant to, (1) the Agreements
and Instruments, except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not result in a Material
Adverse Effect or (2) any existing applicable law, rule, regulation,
judgment, order, writ or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction
over the Trust, the Company or any subsidiary thereof or any of their
respective properties, assets or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder
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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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(xix) Absence of Labor Dispute. No labor dispute with the
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employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Offerors are not aware of any
existing or imminent labor disturbance by the employees of any of
their or their respective subsidiaries' principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xx) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending or, to
the knowledge of the Trust or the Company, threatened against or
affecting the Trust or the Company or any subsidiary, which,
individually or in the aggregate for all such actions, suits,
proceedings, inquiries or investigations, is required to be disclosed
in the Registration Statement (other than as disclosed therein), or
which might reasonably be expected to result in a Material Adverse
Effect (other than as disclosed in the Registration Statement), or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof (other than as disclosed in the
Registration Statement) or the consummation of the transactions
contemplated by the Operative Documents or the performance by the
Trust or the Company of its obligations hereunder or thereunder.
(xxi) Exhibits. There are no contracts or documents which are
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required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein, or to be filed as
exhibits thereto, which have not been so described or filed as
required.
(xxii) Absence of Further Requirements. No filing with, or
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authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or
the Trust of its respective obligations hereunder in connection with
the offering, issuance or sale of the Capital Securities hereunder or
the consummation of the transactions contemplated by the Operative
Documents, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xxiii) Possession of Licenses and Permits. Each of the Offerors
----------------------------------
and each subsidiary of the Company possesses such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
---------------------
local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it; the Offerors and such subsidiaries
are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all
of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not
9
have a Material Adverse Effect; and neither Offeror nor any of such
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xxiv) Title to Property. Each of the Offerors and each subsidiary
-----------------
of the Company has good and marketable title to all real property
reflected in the most recent balance sheet included in the Prospectus
as owned by it and good title to all other properties reflected in the
most recent balance sheet included in the Prospectus as owned by it,
in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (A) are described in the Prospectus or (B) do not,
singly or in the aggregate, materially interfere with the use made and
proposed to be made of such property by the Trust, or the Company and
its subsidiaries or, with respect to any such real property, render
title unmarketable as to a material part thereof; and all of the
leases and subleases material to the business of the Trust, and the
Company and its subsidiaries considered as one enterprise, and under
which either Offeror or such subsidiaries holds properties described
in the Prospectus, are in full force and effect, and neither the
Offerors nor any such subsidiary has any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of
the Offerors or any such subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Offerors or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xxv) Environmental Laws. Except as described in the Registration
------------------
Statement or except as would not, singly or in the aggregate, result
in a Material Adverse Effect: (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
-------------------
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
-------------
Laws"), (B) the Company and its subsidiaries have all permits,
----
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or
10
proceedings relating to any Environmental Law against the Company or
any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or redemption, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or
any Environmental Laws.
(xxvi) Not an Investment Company. Neither the Company nor the
-------------------------
Trust is, or following consummation of the transactions contemplated
hereby and the application of the net proceeds as described in the
Prospectus will be, an "investment company" or a company "controlled
by" an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(xxvii) No Manipulation. The Offerors have not taken and will not
---------------
take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result under the 1934 Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company or the Trust to facilitate the sale or resale
of the Capital Securities.
(b) Officer's Certificates. Any certificate signed by any
----------------------
Administrative Trustee of the Trust or any officer of the Company or
any of its subsidiaries delivered to the Representatives or to counsel
for the Underwriters shall be deemed a representation and warranty by
the Trust or the Company, as the case may be, to each Underwriter as
to the matters covered thereby, without personal liability for the
officer signing such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Capital Securities. On the basis of the representations and
------------------
warranties herein contained and subject to the terms and conditions
herein set forth, the Trust agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Trust, at the price per Capital
Security set forth in Schedule C hereto, the number of Capital
----------
Securities set forth in Schedule A opposite the name of the
Underwriter, plus any additional number of Capital Securities which
such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof, subject, in each case, to such
adjustments among the Underwriters as the Representatives in their
sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b) Payment. Payment of the purchase price and delivery of
-------
certificates for the Capital Securities shall be made at the offices
of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, or at such other place as shall be agreed upon by the
Representatives and the Offerors, at 10:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on
any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not
later than ten business days after such date as shall be agreed
11
upon by the Representatives and the Offerors (such time and date of payment
and delivery being herein called the "Closing Time").
------------
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust against delivery
to the Representatives for the respective accounts of the Underwriters of
certificates for the Capital Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for
their account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Capital Securities that it has agreed to purchase.
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for
the Capital Securities to be purchased by any Underwriter whose funds have
not been received by the Closing Time but such payment shall not relieve
such Underwriter from its obligations hereunder.
(c) Compensation of Underwriters. As compensation to the Underwriters
----------------------------
for their commitment hereunder and in view of the fact that the proceeds of
the sale of the Capital Securities will be used to purchase Junior
Subordinated Debentures of the Company, the Company hereby agrees to pay at
the Closing Time to the Representatives, for the account of the several
Underwriters, in immediately available funds, an amount of $16.25 per
Capital Security to be delivered by the Trust hereunder at the Closing
Time.
(d) Denominations; Registration. The Capital Securities shall be
---------------------------
issued in such denominations as the Representatives may request in writing
at least one full business day before the Closing Time. The certificates
representing the Capital Securities shall be registered in the name of Cede
& Co. pursuant to the DTC Agreement and shall be made available for
examination and packaging by the Representatives in the City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time.
SECTION 3. Covenants of the Offerors. The Offerors covenant with each
-------------------------
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
--------------------------------------------------------------
The Offerors, subject to Section 3(b) hereof, will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Representatives promptly, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. The Offerors will promptly
effect the filings necessary
12
pursuant to Rule 424(b) and will take such steps as they deem necessary to
ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, they will promptly file such prospectus. The
Offerors will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. Each of the Offerors will give the
--------------------
Representatives notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters object.
(c) Delivery of Registration Statements. The Offerors have furnished
-----------------------------------
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters.
(d) Delivery of Prospectuses. The Offerors will furnish to each
------------------------
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request.
(e) Continued Compliance with Securities Laws. The Offerors have
-----------------------------------------
complied and will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations to the extent necessary to permit
the completion of the distribution of the Capital Securities as
contemplated in the Operative Documents. If at any time when a prospectus
is required by the 1933 Act to be delivered in connection with sales of the
Capital Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of the Underwriters or the
Offerors, based upon advice of counsel, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus will not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or if it shall be necessary, in the opinion of such party,
based upon the advice of counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the
13
1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Offerors will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Offerors will use their best efforts,
-----------------------
in cooperation with the Underwriters, to qualify the Capital Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions as the Representatives may designate and to maintain
such qualifications in effect for a period of not less than one year from
the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that neither Offeror
shall be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Capital
Securities have been so qualified, the Offerors will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
--------
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Restriction on Sale of Securities. During a period of 45 days from
---------------------------------
the date of the Prospectus, neither the Trust nor the Company will, without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any Capital
Security or any securities convertible into or exchangeable or exercisable
for Capital Securities or the Junior Subordinated Debentures or any
securities substantially similar (including provisions with respect to the
deferral of interest) to the Junior Subordinated Debentures or any security
substantially similar to the Capital Securities or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of
Capital Securities, any security convertible into or exchangeable or
exercisable for Capital Securities or the Junior Subordinated Debentures or
any securities substantially similar (including provisions with respect to
the deferral of interest) to the Junior Subordinated Debentures, whether
any such swap or transaction described in (i) or (ii) above is to be
settled by delivery of Capital Securities, Junior Subordinated Debentures
or such other securities, in cash or otherwise (except for the Securities
issued pursuant to this Agreement).
14
(i) Reporting Requirements. The Offerors, during the period when the
----------------------
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations and the Company will cause the Bank to file all
documents required to be filed with any supervisory, regulatory,
administrative or governmental agency, body or authority, whether pursuant
to the 1934 Act and the 1934 Act Regulations or otherwise (except reports
to any bank or thrift regulatory agencies prepared on a confidential
basis), except when the failure to file such documents could not reasonably
be expected to result, directly or indirectly, in a Material Adverse
Effect.
(j) DTC Settlement. The Offerors will cooperate with the
--------------
Representatives and use their reasonable efforts to permit the Capital
Securities to be eligible for clearance and settlement through the
facilities of DTC.
(k) Use of Proceeds. The Trust will use the net proceeds received by
---------------
it from the sale of the Capital Securities, and the Company will use the
proceeds received by it from the sale of the Junior Subordinated
Debentures, in all material respects in the manners specified in the
Registration Statement under "Use of Proceeds".
SECTION 4. Payment of Expenses. (a) Expenses. The Company covenants
------------------- --------
and agrees with the several Underwriters that the Company will pay all
expenses incident to the performance of its and the Trust's obligations
under this Agreement, including (i) the preparation, printing and filing of
the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Agreement, any Agreement
among Underwriters, the Operative Documents and such other documents as may
be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of
the certificates for the Capital Securities to the Underwriters, (iv) the
fees and disbursements of the Company's and the Trust's counsel,
accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky survey and any supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheets and of the Prospectus and any amendments or
supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky survey and any supplement thereto,
(viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review
by the National Association of Securities Dealers, Inc. (the "NASD") of the
----
terms of the sale of the Securities, (x) the rating agencies' fees, and
(xi) the fees and expenses of any trustee appointed under any of the
Operative Documents, including the reasonable fees and disbursements of
counsel for such trustees in connection with the Operative Documents.
15
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
Representatives in accordance with the provisions of Section 5, Section
9(a)(i) or Section 11 hereof, the Company shall reimburse the Underwriters
for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy, as of the
Closing Time, of the representations and warranties of the Offerors
contained in Section 1 hereof or in certificates of any trustee of the
Trust, officer of the Company or any of its subsidiaries delivered pursuant
to the provisions hereof, to the performance by the Offerors of their
respective covenants and other obligations hereunder to be performed at or
prior to the Closing Time, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
---------------------------------------
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements
of Rule 430A) or, if the Offerors have elected to rely upon Rule 434, a
Term Sheet shall have been filed with the Commission in accordance with
Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the
------------------------------
Representatives shall have received the favorable opinions, dated as of the
Closing Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company, and
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Executive Vice President and General Counsel for the
Company, in each instance in form and substance reasonably satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of
such opinions for each of the other Underwriters, collectively to the
effect set forth in Exhibit A hereto.
(c) Opinion of Special Delaware Counsel to the Offerors. At the
---------------------------------------------------
Closing Time, the Representatives shall have received the favorable
opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
special Delaware counsel to the Offerors, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters, to
the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for The Chase Manhattan Bank and Chase
---------------------------------------------------------
Manhattan Bank Delaware. At the Closing Time, the Representatives shall
-----------------------
have received the favorable opinion, dated as of the Closing Time, of
Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇,
16
counsel for the Property Trustee, the Delaware Trustee, the Debenture
Trustee and the Guarantee Trustee, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters.
(e) Opinion of Special Tax Counsel to Offerors. At the Closing Time,
------------------------------------------
the Representatives shall have received an opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special tax counsel to the Offerors,
substantially to the effect that the discussion set forth in the
Registration Statement under the caption "Certain Federal Income Tax
Consequences" is a fair and accurate summary of the matters addressed
therein, based upon current law and the assumptions stated or referred to
therein. Such opinion may be conditioned on, among other things, the
initial and continuing accuracy of the facts, financial and other
information, covenants and representations set forth in certificates of
officers of the Company and other documents deemed necessary for such
opinion. Such opinion shall be in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters.
(f) Opinion of Counsel for Underwriters. At the Closing Time, the
-----------------------------------
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, with respect to such matters as they may
reasonably request. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of trustees of the Trust,
officers of the Company and its subsidiaries and certificates of public
officials.
(g) Certificates. At the Closing Time, there shall not have been,
------------
since the date hereof or since the respective dates as of which information
is given in the Prospectus, any material adverse change, or development
involving a prospective material adverse change, in the financial
condition, results of operations or stockholders' equity of the Trust, or
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and the Representatives
shall have received a certificate signed by the President or a Vice
President of the Company and by the chief financial or chief accounting
officer of the Company and a certificate of an Administrative Trustee of
the Trust, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of the Closing Time, (iii)
the Offerors have complied with all agreements and satisfied all conditions
on their part to be performed or satisfied at or prior to the Closing Time,
and (iv) no stop order suspending the effectiveness of the
17
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are contemplated by the Commission.
(h) Accountant's Comfort Letter. At the time of the execution of this
---------------------------
Agreement, the Representatives shall have received from KPMG Peat Marwick
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter
for each of the other Underwriters, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter. At the Closing Time, the
-------------------------
Representatives shall have received from KPMG Peat Marwick LLP a letter,
dated as of the Closing Time, to the effect that it reaffirms the
statements made in the letter furnished pursuant to subsection (h) of this
Section, except that the specified date referred to shall be a date not
more than three business days prior to the Closing Time.
(j) Maintenance of Rating. At the Closing Time, the Capital Securities
---------------------
shall be rated at least Ba3 by ▇▇▇▇▇'▇ Investors Service, Inc. and BB- by
Standard & Poor's Ratings Services, a division of McGraw Hill, Inc., and
the Trust shall have delivered to the Representatives a letter dated the
Closing Time, from each such rating agency, or other evidence satisfactory
to the Representatives, confirming that the Capital Securities have such
ratings; and between the date of this Agreement and the Closing Time, there
shall not have occurred a downgrading in the rating assigned to the Capital
Securities or any of the Company's other securities by any nationally
recognized statistical rating organization, and no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Capital Securities
or any of the Company's other securities.
(k) No Objection. The NASD shall not have raised any objection with
------------
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(l) Additional Documents. At the Closing Time, counsel for the
--------------------
Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Offerors in connection with the issuance and sale
of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Representatives and counsel for the
Underwriters.
(m) Termination of Agreement. If any condition specified in this
------------------------
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Offerors at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other
18
party, except as provided in Section 4, and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of the Underwriters. The Offerors agree to jointly
-----------------------------------
and severally indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner
as set forth below:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that any such settlement is effected with the
written consent of the Offerors;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any act or failure to
act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Securities or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, liability, claim, damage or action arising
out of or based upon matters covered by clause (i) above (provided
that the Offerors shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of
competent jurisdiction that such any loss, liability, claim, damage or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct); and
(iv) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation
19
or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i),
(ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information furnished
to the Offerors by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇, expressly for use
in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided further that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter)
from whom the person asserting any such loss, liability, claim or damage
purchased Capital Securities if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented by the
Offerors if the Offerors shall have furnished any amendments or supplements
thereto) and a copy of the Prospectus (as so amended or supplemented),
which at such time had been provided to the Underwriters for their use,
shall not have been furnished to such person at or prior to the written
confirmation of sale of such Capital Securities to such person.
(b) Indemnification by the Underwriters. Each Underwriter severally
-----------------------------------
agrees to indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, the Trust, each of the
Trustees and each person, if any, who controls the Company or the Trust
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Offerors by such
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
-------------------------------------
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof
and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to
20
Section 6(a) above, counsel to the indemnified parties shall be selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇, and in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Offerors. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 6
or Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party (other than pursuant to the terms thereof) in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred
by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on
the one hand and the Underwriters on the other hand from the offering of
the Capital Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors
on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the
Capital Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of
the Capital Securities pursuant to this Agreement (before deducting
expenses) received by the Offerors and the total underwriting commission
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the Capital
Securities as set forth on such cover.
21
The relative fault of the Offerors on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Offerors or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this
Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Capital Securities purchased by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each trustee of the Trust,
each officer of the Company and each trustee of the Trust who signed the
Registration Statement, and each person, if any, who controls the Company
or the Trust within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Company
and the Trust. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of
Capital Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement, or in certificates of officers of the Company or trustees of the
Trust submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or the
Trust, and shall survive delivery of the Capital Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
------------------------
22
(a) Termination; General. The Representatives may terminate this
--------------------
Agreement, by notice to the Offerors, at any time at or prior to the
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change, or development involving a
prospective material adverse change, in the financial condition, results of
operations or stockholders' equity of the Trust, or the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Capital Securities or to
enforce contracts for the sale of the Capital Securities, or (iii) if
trading in any securities of the Company has been suspended or limited by
the Commission or the New York Stock Exchange, or if trading generally on
the American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
-----------
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further
that Sections 1, 6, 7 and 8 shall survive such termination and remain in
full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at the Closing Time to purchase the Capital
Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Capital Securities"), the Representatives shall have the
----------------------------
right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Capital Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representatives shall not have completed such arrangements
within such 24-hour period, then: (a) if the number of Defaulted Capital
Securities does not exceed 10% of the number of Capital Securities to be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Capital Securities exceeds 10% of the number
of Capital Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
23
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Offerors
shall have the right to postpone the Closing Time, for a period not
exceeding seven days, in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Default by the Offerors. If at Closing Time the Offerors
-----------------------
shall fail to deliver the Capital Securities to the Representatives, then
the Underwriters may, at the option of the Representatives, by notice from
the Representatives to the Offerors, terminate this Agreement without any
liability on the part of any non-defaulting party except that the
provisions of Sections 1, 4, 6 and 7 shall remain in full force and effect.
No action taken pursuant to this Section 11 shall relieve the defaulting
party from liability, if any, in respect of such default.
SECTION 12. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, North Tower, World
Financial Center, New York, New York 10281-1201, attention of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Director, Financial Institutions Group; notices to the Offerors
shall be directed to the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, attention of the General Counsel.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
-------
be binding upon each of the Underwriters, the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of
the Underwriters, the Offerors and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Capital Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Offerors a counterpart hereof,
whereupon this agreement, along with all counterparts, will become a
binding agreement among the Underwriters and the Offerors in accordance
with its terms.
Very truly yours,
DIME CAPITAL TRUST I
BY DIME BANCORP, INC., as Depositor and Sponsor
By /s/ D. ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: D. ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President and Treasurer
DIME BANCORP, INC.
By /s/ D. ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: D. ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
BT SECURITIES CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
25
SCHEDULE A
Number of
Name of Underwriter Capital Securities
------------------- ------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ 100,000
Incorporated BT Securities Corporation 50,000
▇▇▇▇▇▇ Brothers Inc. 50,000
-------
Total 200,000
=======
Sch A-1
SCHEDULE B
List of Subsidiaries
DIME BANCORP, INC. SUBSIDIARIES
(as of April 29, 1997)
DIME CAPITAL TRUST I
DIME CAPITAL TRUST II
THE DIME SAVINGS BANK OF NEW YORK, FSB
FORMER ANCHOR AND LINCOLN SUBSIDIARIES
(as of April 29, 1997)
ACCORD AGENCY, INC.
ACCORD REALTY MANAGEMENT CORPORATION
ANCHOR MORTGAGE RESOURCES, INC. /1/
ANCHOR PROPERTIES OF NEW JERSEY, INC.
ANCHOR PROPERTY CORP.
ANCHOR RESIDENTIAL FACILITIES CORPORATION/2/
ANCHOR SYSTEMS CORP./3/
APRIL PARK CORP.
ASB AGENCY, INC.
69-30 AUSTIN HOLDING CORP.
THE CHELSEA ACCORD CORPORATION
THE ▇▇▇▇▇▇ ACCORD CORPORATION/4/
DIME NJ AGENCY, INC./5/
THE E-F BATTERY ACCORD CORPORATION
FAMESLINC, INC./6/
HARMONY AGENCY, INC./7/
-------------------
/1/ Formerly known as Mortgage Resources, Inc.
/2/ Formerly known as Anchor Facilities Corp.
/3/ Formerly known as Suburban Coastal Systems Corporation, which was f/k/a
Coastal Computer Services, Inc.
/4/ Formerly known as The ▇▇▇▇▇▇ East Accord Corporation.
/5/ Formerly known as ASB/NJ Agency Inc., which was f/k/a Suburban Coastal
Insurance Services, Inc., which was f/k/a Coastal Insurance Services,
Inc.
/6/ Formerly known as 3489 Broadlinc, Inc.
/7/ Formerly known as Allrisk Agency, Inc.
Sch B-1
HERITAGE COMMUNITY SERVICE CORP.
INSERVCO, INC.
520 LINC, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ GARDENS ACQUISITION CORP.
LINCOLN REALTY CAPITAL, INC./1/
LINCOLN RRE CORPORATION
LINCOLN TUDOR COURT ACQUISITION CORP.
LINCOLN VENTURES GROUP LTD.
THE MOUNT KISCO ACCORD CORPORATION
78 NEW LINC CORPORATION/2/
NEW PELHAMCO INC.
847218 ONTARIO LIMITED
847219 ONTARIO LIMITED
847220 ONTARIO LIMITED
847221 ONTARIO LIMITED
PELHAM VENTURE INC.
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ OWNERS CORPORATION
RECON SERVICES CORP./3/
THE SEVENTH AVENUE ACCORD CORPORATION
THE SIXTH AVENUE ACCORD CORPORATION
SKY RESORT, INC.
STANDARD OF GEORGIA INSURANCE AGENCY, INC.
YELLOWSTONE VENTURE, INC.
-------------
/1/ Formerly known as Accord Properties, Inc.
/2/ Formerly known as 78 New Linc Corp.
/3/ Formerly known as 1441 Grant Linc, Inc.
Sch B-2
"DIME SAVINGS" SUBSIDIARIES
(as of April 29, 1997)
555 BILTMORE, INC./1/
445 CEDARHURST, INC.
COLONIAL BRISTOL INC.
THE DIME AGENCY, INC.
DIME FLORIDA CONSOLIDATION CORP./2/
DIME FUNDING, INC.
DIME MORTGAGE, INC./3/
DIME MORTGAGE OF ARIZONA, INC.
DIME MORTGAGE OF NEW JERSEY, INC./4/
THE DIME REAL ESTATE SERVICES -- CONNECTICUT, INC.
DIME SECURITIES OF NEW YORK, INC./5/
DNJ AGENCY, INC.
F.C. LTD.
FIFTH AVENUE PROPERTY CORP.
GARDEN MANAGEMENT CO., INC.
GRANNY ROAD LAND CORP.
1101 ▇▇▇▇▇▇▇, INC.
LAKEVIEW LAND CORP./6/
▇▇▇▇▇▇▇▇ AVENUE CORP./7/
MEDFORD ASSOCIATES, INC.
MIDWAY HOLDINGS INC./8/
NICKEL PURCHASING COMPANY, INC.
NIFTY CORP.
NORTHEAST APPRAISALS, INC.
NORTHSHORE CONSOLIDATION CORP./9/
PEMBROKE AND ▇▇▇▇▇▇▇▇▇▇, INC.
PLAINVIEW INN, INC.
-----------
/1/ Formerly known as Alhambra Circle, Inc.
/2/ Formerly known as Dime Mortgage Company, Inc., which was formerly known as
The Dime Real Estate Services, Inc.
/3/ Formerly known as Dime Mortgage of Georgia, Inc.
/4/ Formerly known as Dime of New Jersey, Inc.
/5/ Formerly known as TDA Securities Inc.
/6/ Formerly known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
/7/ Formerly known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corp., which was formerly known as
▇▇▇▇▇ Street, Inc.
/8/ Formerly known as Midway Green Inc.
/9/ Formerly known as Dime Consolidation Company, Inc.
Sch B-3
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇./▇/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MANAGEMENT, INC.
299 SHORE LEE CORP.
SOMERSET CONSOLIDATION CORPORATION
UNIONDALE HOLDINGS INC.
▇▇▇▇▇▇▇▇▇▇▇▇ CORP.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇. CORP./2/
WACCABORO CORP.
WAPPINGERS FALLS DEVELOPMENT CORP.
WINDY RIDGE CORP.
----------
/1/ Formerly known as Prince Farms Development Corp., which was formerly known
as Pearl Plaza Inc., which was formerly known as Park Lane South Corp.
/2/ Formerly known as Macarthur Inc.
Sch B-4
SCHEDULE C
DIME BANCORP, INC.
9.33% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
1. The initial public offering price per Capital Security, determined as
provided in said Section 2, shall be $1,000.
2. The purchase price per Capital Security to be paid by the several
Underwriters shall be $1,000, being an amount equal to the initial public
offering price set forth above. The Company shall pay to the Representatives,
for the account of the several Underwriters, an amount of $16.25 per Capital
Security, representing the underwriting commission set forth on page 1 of the
Prospectus.
Sch C-1
Exhibit A
---------
OPINION OF THE COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
The opinions of counsel for the Company referred to in Section 5(b)
collectively shall be substantially to the following effect (capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Purchase Agreement):
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
The Company has the requisite corporate power and authority to conduct
its business in all material respects as described in the Prospectus.
(ii) The Bank is validly existing as a federal savings bank under the
Federal laws of the United States. The Bank has the requisite
corporate power and authority to conduct its business in all material
respects as described in the Prospectus.
(iii) All regulatory consents, authorizations, approvals
and filings required to be obtained or made by the Company or the
Trust under the Federal laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of
Delaware for the issuance, sale and delivery to the Underwriters of
the Capital Securities have been obtained or made.
(iv) Neither the execution and delivery of the Operative Documents by
the Trust or the Company, as the case may be, the issuance and
delivery of the Securities, the consummation by the Offerors of the
transactions contemplated in the Operative Documents and compliance by
the Offerors with their respective obligations under the Operative
Documents to which they are party nor the fulfillment of the terms
thereof does or will, whether with or without the giving of notice or
passage of time or both, (a) violate the Company's certificate of
incorporation or by-laws or the Trust Agreement or the Trust
Certificate, (b) result in a default under or breach of the Agreements
and Instruments known to such counsel, except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect, or (c) violate any Federal law of
the United States or law of the State of New York applicable to the
Company or the Trust; provided, however, that for purposes of this
-------- -------
paragraph (v), such counsel need not express an opinion with respect
to Federal or state securities laws, other antifraud laws or
fraudulent transfer laws.
(v) The Purchase Agreement has been duly authorized, executed and
delivered by the Company and has been duly executed and delivered by
the Trust.
(vi) The Trust Agreement has been duly authorized, executed and
delivered by the Company and has been duly executed and delivered by
the Administrative
A-1
Trustees for the Trust, and, assuming it is duly authorized, executed
and delivered by the Property Trustee and Delaware Trustee, the Trust
Agreement constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject
to the Enforceability Exceptions.
(vii) The Guarantee has been duly authorized, executed and delivered
by the Company and, assuming it is duly authorized, executed and
delivered by the Guarantee Trustee, constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the Enforceability Exceptions.
(viii) The Indenture has been duly authorized, executed and delivered
by the Company and, assuming it is duly authorized, executed and
delivered by the Debenture Trustee, constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms,
subject to the Enforceability Exceptions.
(ix) The Trust Agreement, the Guarantee and the Indenture have been
duly qualified under the ▇▇▇▇ ▇▇▇.
(x) The Junior Subordinated Debentures have been duly and validly
authorized, executed, authenticated and delivered and will constitute
valid and binding obligations of the Company enforceable in accordance
with their terms, subject to the Enforceability Exceptions.
(xi) Neither the Company nor the Trust is, or following consummation
of the transactions contemplated by the Purchase Agreement and the
application of the net proceeds as described in the Prospectus will
be, an "investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(xii) The statements set forth in the Prospectus relating to the
Capital Securities under the captions "Description of Preferred
Securities," "Description of Junior Subordinated Debentures,"
"Description of Guarantees," "Relationship Among the Preferred
Securities, The Corresponding Junior Subordinated Debentures, the
Expense Agreement and the Guarantees" and "Plan of Distribution," as
supplemented by the Prospectus Supplement under the captions "Certain
Terms of Series A Capital Securities," "Certain Terms of Series A
Subordinated Debentures," "Certain Terms of Series A Guarantee" and
"Underwriting," insofar as they purport to constitute summaries of
certain terms of the Operative Agreements, in each case constitute
accurate summaries of the terms of the Operative Agreements in all
material respects.
In addition, in one or more separate letters, such counsel shall state that
they have reviewed the Registration Statement and the Prospectus, participated
in discussions with the Representative and the representatives of the Company
and its accountants and that, on the basis of the information gained in such
discussions, the Registration Statement, as of the date it
A-2
became effective, the Prospectus, as of the date of the Prospectus, appeared on
their face to be appropriately responsive in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations, and that such counsel
does not know of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement which are not filed as
required. Further, such counsel shall confirm that nothing that came to their
attention in the course of the aforementioned review has caused them to believe
that the Registration Statement, as of the date it became effective, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of the Prospectus and as of
the Closing Date, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process are
such, however, that such counsel shall not be required to assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under the headings "Description of Junior Subordinated Debentures," "Description
of Preferred Securities," "Description of Guarantees," "Relationship Among the
Preferred Securities, the Corresponding Junior Subordinated Debentures, the
Expense Agreements and the Guarantees," "Certain Terms of Series A Capital
Securities," "Certain Terms of Series A Subordinated Debentures," "Certain Terms
of Series A Guarantee" and "Underwriting" in the Prospectus insofar as they
relate to provisions of documents therein described. Also, such counsel need
not express any opinion or belief as to the financial statements or other
financial data contained in the Registration Statement of the Prospectus or as
to the statement of eligibility and qualification of the trustee under the
Indenture.
The General Counsel of the Company also shall confirm that he does not know
of (a) any litigation or any governmental proceeding instituted or threatened
against the Company or any of its consolidated subsidiaries that would be
required to be disclosed in the Prospectus and is not so disclosed and (b) of
any contracts or other documents of a character required to be incorporated by
reference into the Prospectus as amended or supplemented or required to be
summarized in the Registration Statement or Prospectus as amended or
supplemented which are not incorporated by reference or summarized as required.
A-3
Exhibit B
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OPINION OF SPECIAL DELAWARE COUNSEL TO THE OFFERORS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
The opinion of special Delaware counsel for the Company and the Trust
referred to in Section 5 shall be to the following effect (capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Purchase Agreement):
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act,
and all filings required under the laws of the State of
Delaware with respect to the creation and valid existence of
the Trust as a business trust have been made.
(ii) Under the Delaware Act and the Trust Agreement, the
Trust has the business trust power and authority to (A)
execute and deliver, and to perform its obligations under,
the Purchase Agreement, (B) issue and perform its obligations
under the Capital Securities and the Common Securities, (C)
purchase and hold the Junior Subordinated Debentures, and (D)
own property and conduct its business, all as described in
the Prospectus.
(iii) The Common Securities have been duly authorized by the
Trust Agreement and are validly issued and represent
undivided beneficial interests in the assets of the Trust.
(iv) The Capital Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject
to certain qualifications, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
The holders of the Capital Securities, as beneficial owners
of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware.
(v) Under the Trust Agreement and the Delaware Act, the
issuance of the Capital Securities and the Common Securities
are not subject to preemptive or other similar rights.
(vi) The execution, delivery and performance of the Purchase
Agreement by the Trust or the Company, as the case may be,
the issuance and sale by the Trust of the Securities, the
consummation by the Offerors of the transactions contemplated
thereby, and compliance by the Offerors with their respective
obligations thereunder do not and will not, whether with or
without the giving of notice or passage of time or both,
violate (A) any provisions of the charter or by-laws of the
Company or any subsidiary thereof or the Trust Agreement or
the Trust Certificate or (B) any existing applicable law,
rule, regulation, judgment, order, writ or decree of any
government, governmental instrumentality or court,
B-1
domestic or foreign, having jurisdiction over the Trust, the Company
or any subsidiary thereof. After due inquiry on the business day
immediately prior to the Closing Date, limited to, and solely to the
extent disclosed thereupon, court dockets for active cases in the
Court of Chancery of the State of Delaware in and for New Castle
County, Delaware, of the Superior Court of the State of Delaware in
and for New Castle County, Delaware, and of the United States District
Court sitting in the State of Delaware, such counsel is not aware of
any legal or governmental proceeding pending against the Trust.
(vii) Under the Trust Agreement and the Delaware Act, the execution
and delivery by the Trust of the Purchase Agreement, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
(viii) The Trust Agreement constitutes a valid and binding obligation
of the Company and the Trustees, and is enforceable against the
Company and the Trustees, in accordance with its terms, and the
Capital Securities entitle the holders thereof to the benefits of the
Trust Agreement, subject to the terms of the Trust Agreement and to
the Enforceability Exceptions.
B-2
Exhibit C
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OPINION OF COUNSEL FOR THE TRUSTEES
TO BE DELIVERED PURSUANT TO SECTION 5(d)
The opinions of counsel for the Guarantee Trustee, the Property
Trustee, the Debenture Trustee and the Delaware Trustee (for purposes of this
form of opinion, each, a "Trustee") referred to in Section 5(d) shall each be to
the following effect (capitalized terms used but not defined herein shall have
the meanings ascribed to them in the Purchase Agreement):
(i) The Trustee is a _____ banking corporation with trust powers,
duly organized and validly existing in good standing under the laws of the
State of _____, with full corporate trust power and authority to execute,
deliver and carry out and perform its obligations under the terms of the
Guarantee, the Trust Agreement and the Indenture.
(ii) The execution, delivery and performance by the Trustee of
the [Guarantee, the DTC Agreement, the Trust Agreement and the
Indenture]/1/ have been duly authorized by all necessary corporate action
on the part of the Trustee and [each of the Guarantee, the Trust Agreement
and the Indenture] has been duly executed and delivered by the Trustee, and
constitutes the legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, except to the
extent that enforcement thereof may be limited by the Enforceability
Exceptions.
(iii) The execution and delivery of the [Guarantee, the DTC
Agreement, the Trust Agreement and the Indenture] by the Trustee and the
performance by the Trustee of its obligations thereunder do not conflict
with or constitute a breach of the charter or by-laws of the Trustee.
(iv) No consent, approval or authorization of, or registration or
filing with or notice to, any court or governmental authority or agency of
the State of _____ or the United States of America having jurisdiction over
the banking or trust powers of the Trustee is required for the execution,
delivery or performance by the Trustee of the [Guarantee, the DTC
Agreement, the Trust Agreement or the Indenture] or the consummation on the
part of the Trustee of any of the transactions contemplated therein.
-----------------
/1/ Insert documents to which the applicable Trustee is a party for each
bracketed section.
C-1