As filed with the Securities and Exchange Commission on July 29, 2004
Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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DIME COMMUNITY BANCSHARES, INC. DIME COMMUNITY CAPITAL TRUST I
(Exact name of Registrant (Exact name of Co-Registrant
as specified in its charter) as specified in its charter)
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
6035 6719
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
11-3297463 51-6555113
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
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209 HAVEMEYER STREET
BROOKLYN, NEW YORK 11211
(718) 782-6200
(Address, including zip code,
and telephone number,
including area code, of Registrant's and Co-Registrant's
principal executive offices)
VINCENT F. PALAGIANO
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
DIME COMMUNITY BANCSHARES, INC.
209 HAVEMEYER STREET
BROOKLYN, NEW YORK 11211
(718) 782-6200
(Name, address, including zip code, and telephone number,
including area code, of agents for service)
KENNETH J. MAHON
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
DIME COMMUNITY BANCSHARES, INC.
209 HAVEMEYER STREET
BROOKLYN, NEW YORK 11211
(718) 782-6200
(Name, address, including zip code, and telephone number,
including area code, of agents for service)
COPIES TO:
ROBERT C. AZAROW, ESQ.
OMER S. J. WILLIAMS, ESQ.
THACHER PROFFITT & WOOD LLP
TWO WORLD FINANCIAL CENTER
NEW YORK, NEW YORK 10281
(212) 912-7400
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
(1) Estimated solely for the purpose of computing the registration fee.
(2) No separate consideration will be received for the Exchange Debt Securities
of Dime Community Bancshares, Inc. distributed upon any liquidation of Dime
Community Capital Trust I, and no separate consideration will be received
for the Dime Community Bancshares, Inc. Exchange Guarantee.
(3) This Registration Statement is deemed to cover rights of holders of
Exchange Debt Securities under the Indenture, the rights of holders of
Exchange Capital Securities of Dime Community Capital Trust I under the
Second Amended and Restated Declaration of Trust, the rights of holders of
such Exchange Capital Securities under the Exchange Guarantee and certain
backup undertakings in this Registration Statement.
(4) Such amount represents the liquidation amount of the Exchange Capital
Securities to be exchanged hereunder and the principal amount of Exchange
Debt Securities that may be distributed to holders of such Exchange Capital
Securities upon any liquidation of Dime Community Capital Trust I.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY DETERMINE.
PROSPECTUS
DIME COMMUNITY CAPITAL TRUST I
OFFER TO EXCHANGE ITS 7.0% CAPITAL SECURITIES, SERIES B
(LIQUIDATION AMOUNT $1,000 PER EXCHANGE CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING 7.0% CAPITAL SECURITIES, SERIES A
(LIQUIDATION AMOUNT $1,000 PER ORIGINAL CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT DESCRIBED
IN THIS PROSPECTUS, BY
[LOGO OF DIME COMMUNITY BANCSHARES, INC.]
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME ON _______, 2004, UNLESS EXTENDED.
Dime Community Capital Trust I, referred to as the Trust, is offering and selling upon the terms and subject to the conditions described in this prospectus, as amended and supplemented from time to time, and in the accompanying letter of transmittal, which together constitute the exchange offer, to exchange up to and including $70,000,000 aggregate liquidation amount of its 7.0% capital securities, Series B, referred to as the exchange capital securities, which have been registered under the Securities Act of 1933, as amended, by a registration statement of which this prospectus is a part, for a like amount of its outstanding 7.0% capital securities, Series A, referred to as the original capital securities, of which $70,000,000 aggregate liquidation amount are issued and outstanding.
This prospectus and the letter of transmittal are first being mailed to all holders of the original capital securities, on or about _______, 2004.
YOU SHOULD READ "RISK FACTORS" BEGINNING ON PAGE 16 TO READ ABOUT THE RISKS THAT YOU SHOULD CONSIDER IN DECIDING WHETHER TO TENDER THE ORIGINAL CAPITAL SECURITIES IN THE EXCHANGE OFFER.
THESE SECURITIES ARE NOT DEPOSITS OR ACCOUNTS AND ARE NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION, REFERRED TO AS THE SEC, NOR ANY STATE SECURITIES COMMISSION OR REGULATOR HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. IT IS ILLEGAL FOR ANYONE TO TELL YOU OTHERWISE.
THE DATE OF THIS PROSPECTUS IS _____, 2004.
AVAILABLE INFORMATION
Dime Community Bancshares, Inc. files reports, proxy statements and other information with the SEC under the Securities Exchange Act of 1934, as amended, referred to as the Exchange Act. You may read and copy this information at prescribed rates at the following location of the SEC:
Public Reference Room 450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
You can also obtain additional information about the operation of the SEC's public reference facilities by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet world wide web site that contains reports, proxy statements and other information about issuers like us who file electronically with the SEC. The address of that site is HTTP://WWW.SEC.GOV.
The common stock of Dime Community is traded on The Nasdaq National Market and quoted under the symbol DCOM. You can also inspect information about Dime Community by visiting The Nasdaq National Market web site (HTTP://WWW.NASDAQ.COM). Our web site is HTTP://WWW.DSBWDIRECT.COM. Information contained in our web site does not constitute part of this prospectus.
NO SEPARATE FINANCIAL STATEMENTS OF THE TRUST HAVE BEEN INCLUDED IN THIS PROSPECTUS AND NO SEPARATE FINANCIAL STATEMENTS WILL BE PREPARED IN THE FUTURE. WE DO NOT CONSIDER THAT SUCH FINANCIAL STATEMENTS WOULD BE MATERIAL TO HOLDERS OF THE EXCHANGE CAPITAL SECURITIES OFFERED BY THIS PROSPECTUS BECAUSE THE TRUST IS A NEWLY-FORMED SPECIAL PURPOSE ENTITY, HAS NO OPERATING HISTORY OR INDEPENDENT OPERATIONS, IS NOT ENGAGED IN AND DOES NOT PROPOSE TO ENGAGE IN ANY ACTIVITY OTHER THAN HOLDING AS TRUST ASSETS OUR EXCHANGE DEBT SECURITIES, ISSUING THE EXCHANGE CAPITAL SECURITIES TO INVESTORS AND COMMON SECURITIES TO DIME COMMUNITY AND ENGAGING IN INCIDENTAL ACTIVITIES. THE OBLIGATIONS OF THE TRUST TO MAKE PAYMENTS UNDER THE EXCHANGE CAPITAL SECURITIES ARE FULLY AND UNCONDITIONALLY GUARANTEED BY DIME COMMUNITY AS AND TO THE EXTENT SET FORTH
UNDER "DESCRIPTION OF EXCHANGE GUARANTEE." TAKEN TOGETHER, DIME COMMUNITY'S OBLIGATIONS UNDER THE EXCHANGE DEBT SECURITIES, THE INDENTURE, THE TRUST AGREEMENT AND THE EXCHANGE GUARANTEE WILL PROVIDE, ON A SUBORDINATED BASIS, A FULL, IRREVOCABLE AND UNCONDITIONAL GUARANTEE OF THE TRUST'S PAYMENTS OF DISTRIBUTIONS AND OTHER AMOUNTS DUE ON THE EXCHANGE CAPITAL SECURITIES. DIME COMMUNITY DOES NOT EXPECT THAT THE TRUST WILL FILE REPORTS, PROXY STATEMENTS AND OTHER INFORMATION UNDER THE EXCHANGE ACT WITH THE SEC.
This prospectus constitutes a part of a registration statement on Form S-4 filed by us and the Trust with the SEC under the Securities Act of 1933, as amended, also referred to as the Securities Act. This prospectus does not contain all the information set forth in the registration statement, certain parts of which are omitted in accordance with the rules and regulations of the SEC, and reference is made to the registration statement and to the exhibits relating to such registration statement for further information with respect to Dime Community and the exchange capital securities. Any statements contained in this prospectus concerning the provisions of any document are not necessarily complete, and, in each instance, reference is made to the copy of such document filed as an exhibit to the registration statement or otherwise filed with the SEC. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We are incorporating information into this prospectus by reference, which means that we are disclosing important information to you by referring you to documents filed with the SEC. The information incorporated by reference is considered to be a part of this prospectus, except as discussed below. The following documents that we have filed with the SEC are incorporated into this prospectus by reference:
o DIME COMMUNITY'S ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2003;
o DIME COMMUNITY'S QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED MARCH 31, 2004; AND
o DIME COMMUNITY'S CURRENT REPORT ON FORM 8-K DATED JUNE 9, 2004.
o DIME COMMUNITY'S CURRENT REPORT ON FORM 8-K DATED JULY 23, 2004.
In addition, we also incorporate by reference all future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of the offering of the exchange capital securities offered by this prospectus from the date of filing of such document. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (other than Current Reports furnished under Item 9 of Form 8-K), as well as proxy statements. However, any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
The information incorporated by reference contains information about us and our financial condition and performance and is an important part of this prospectus.
You can obtain any of the documents incorporated by reference in this prospectus through us, or from the SEC through the SEC's Internet world wide web site at the address specified above. Documents incorporated by reference in this prospectus are available without charge, excluding any exhibits to those documents, by writing or telephoning us at:
Dime Community Bancshares, Inc. 209 Havemeyer Street Brooklyn, NY 11211 Attention: Investor Relations (718) 782-6200
You should rely only on the information incorporated by reference or provided in this prospectus or any supplement. We have not authorized anyone to give any information or make any representation about us that is different from, or in addition to, those contained or incorporated by reference in this prospectus. If anyone does give you any additional or different information, you should not rely on it. If you are in a jurisdiction where offers to sell, or solicitations of offers to purchase, the exchange capital securities are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer presented in this prospectus does not extend to you. The information contained or incorporated by reference in this prospectus speaks only as of the date of this document unless the information specifically indicates that another date applies.
FORWARD LOOKING STATEMENTS
This prospectus, including information included or incorporated by reference, contains statements which are not historical facts but "forward-looking statements," as that term is defined in the Private Securities Litigation Reform Act of 1995, with respect to our financial condition, results of operations, plans, objectives, future
performance and business. These statements may be identified by the use of the words "anticipate," "believe," "could," "estimate," "expect," "intend," "may," "outlook," "plan," "potential," "predict," "project," "should," "will," "would" and similar terms and phrases, including references to assumptions.
The forward-looking statements contained in this prospectus are based on various assumptions and analyses made by us in light of our management's experience and its perception of historical trends, current conditions and expected future developments, as well as other factors it believes are appropriate under the circumstances. These statements are not guarantees of future performance and are subject to risks, uncertainties and other factors (many of which are beyond our control) that could cause actual results to differ materially from future results expressed or implied by such forward-looking statements. These factors include, without limitation, the following:
o the timing and occurrence or non-occurrence of events may be subject to circumstances beyond our control;
o there may be increases in competitive pressure among financial institutions or from non-financial institutions;
o changes in the interest rate environment may reduce net interest margins;
o changes in deposit flows, loan demand or real estate values may adversely affect our business;
o changes in accounting principles, policies or guidelines may cause our financial condition to be perceived differently;
o general economic conditions, either nationally or locally in some or all areas in which we do business, or conditions in the securities markets or the banking industry may be less favorable than we currently anticipate;
o legislation or regulatory changes may adversely affect our business;
o technological changes may be more difficult or expensive than we anticipate;
o success or consummation of new business initiatives may be more difficult or expensive than we anticipate; or
o litigation or other matters before regulatory agencies, whether currently existing or commencing in the future, may delay the occurrence or non-occurrence of events longer than we anticipate.
The forward-looking statements are made as of the date of this prospectus, and, except as required by applicable law, we assume no obligation to update the forward-looking statements or to update the reasons why actual results could differ from those projected in the forward-looking statements. The statements in the "Risk Factors" section of this prospectus are cautionary statements identifying important factors, including certain risks and uncertainties, that could cause our results to vary materially from the future results covered in such forward-looking statements. You should consider these risks and uncertainties in evaluating the forward-looking statements and you should not place undue reliance on these statements.
SUMMARY
The following information is a summary of the significant terms of the offering of exchange capital securities made by this prospectus. You should carefully read this prospectus to understand fully the terms of the exchange capital securities, as well as the tax and other considerations that are important to you in making a decision about whether to exchange your original capital securities for the exchange capital securities. You should pay special attention to the "Risk Factors" section beginning on page 16 of this prospectus to determine whether an investment in the exchange capital securities is appropriate for you.
Unless otherwise indicated or unless the context requires otherwise, all references in this prospectus to "Dime Community," "we," "us," "our" or similar references mean Dime Community Bancshares, Inc. and references to "Dime of Williamsburgh" or "Bank" means The Dime Savings Bank of Williamsburgh.
DIME COMMUNITY BANCSHARES, INC.
Dime Community Bancshares, Inc., is a Delaware corporation and is the unitary savings and loan association holding company for The Dime Savings Bank of Williamsburgh, a federally chartered stock savings bank. At March 31, 2004, on a consolidated basis, we had total assets of $3.37 billion, deposits of $2.27 billion and total stockholders' equity of $275.8 million.
The Bank's principal business has been, and continues to be, gathering deposits from customers primarily within its market area, and investing those deposits primarily in multi-family residential mortgage loans, commercial real estate loans, one- to four-family residential mortgage loans, construction loans, consumer loans, mortgage-backed securities, referred to as MBS, obligations of the U.S. Government and Government Sponsored Entities, and corporate debt and equity securities. The Bank's revenues are derived principally from interest on its loan and securities portfolios. The Bank's primary sources of funds are: deposits; loan amortization, prepayments and maturities; MBS amortization, prepayments and maturities; investment securities maturities; advances from the Federal Home Loan Bank of New York; securities sold under agreement to repurchase borrowings; and the sale of real estate loans to the secondary market.
The Bank's primary strategy is to increase its household and deposit market shares in the communities that it serves, either through direct marketing, acquisitions or purchases of deposits. The Bank also seeks to increase its product and service utilization for each individual depositor. In addition, the Bank's primary strategy includes the origination of, and investment in, mortgage loans with an emphasis on multi-family residential loans. Multi-family residential lending is a significant business of the Bank, reflecting the fact that much of the housing in its primary lending area is multi-family housing. The Bank also strives to provide a stable source of liquidity and earnings through the purchase of investment grade securities; seeks to maintain the asset quality of its loans and other investments; and uses appropriate portfolio and asset/liability management techniques in an effort to manage the effects of interest rate volatility on its profitability and capital.
Management of the Bank believes that multi-family residential loans provide advantages as investment assets. Initially, they offer a higher yield than one-to four-family loans or investment securities of comparable maturities or terms to repricing. Origination and processing costs for the Bank's multi-family residential and commercial real estate loans are lower per thousand dollars of originations than comparable one- to four-family loan costs. In addition, the Bank's market area generally has provided a stable flow of new and refinanced multi-family residential loan originations. In order to address the higher credit risk associated with multi-family residential lending, the Bank has developed underwriting standards that it believes are reliable in order to maintain consistent credit quality for its new loans. For further information regarding our operating strategies, you should read the sections titled "Business" and "Management's Discussion and Analysis of Financial Condition and Results of Operations" in our Annual Report on Form 10-K for the year ended December 31, 2003, which is incorporated into this prospectus by reference.
As a publicly-held unitary savings and loan holding company, Dime Community is required to file certain reports with, and otherwise comply with the rules and regulations of, the SEC under the federal securities laws and of the Office of Thrift Supervision, referred to as the OTS. Dime of Williamsburgh is subject to extensive regulation, examination, and supervision by the OTS, as its chartering agency, and the Federal Deposit Insurance Corporation, referred to as the FDIC, as its deposit insurer.
Dime Community's principal executive offices are located at Dime Community Bancshares, Inc., 209 Havemeyer Street, Brooklyn, New York 11211, and its telephone number is (718) 782-6200.
Additional information about Dime Community and its subsidiaries is included in documents incorporated by reference in this prospectus. You should refer to "Available Information."
DIME COMMUNITY CAPITAL TRUST I
Dime Community Capital Trust I is a statutory trust created under Delaware law upon the filing of a certificate of trust with the Delaware Secretary of State. The Trust's business and affairs are conducted by the institutional trustee, the Delaware trustee and three individual administrators who are officers of Dime Community. The Trust exists for the exclusive purposes of:
o issuing and selling the original capital securities and the exchange capital securities, collectively referred to as the capital securities;
o using the proceeds from the sale of the capital securities and the common securities to acquire fixed rate junior subordinated deferrable interest debt securities, referred to as the junior subordinated debt securities, issued by Dime Community; and
o engaging in only those other activities necessary, advisable or incidental to the above.
Accordingly, the junior subordinated debt securities are the sole assets of the Trust, and payments under the junior subordinated debt securities are the sole revenues of the Trust.
All of the common securities of the Trust are owned by Dime Community.
THE EXCHANGE OFFER
THE EXCHANGE OFFER.................... Up to and including $70,000,000
aggregate liquidation amount of
exchange capital securities are being
offered in exchange for a like
aggregate liquidation amount of
original capital securities. Original
capital securities may be tendered for
exchange in whole or in part in a
liquidation amount of $100,000 (100
original capital securities) or any
integral multiple of $1,000 (one
original capital security) in excess of
$100,000. Under the exchange offer, we
will exchange as soon as practicable
after the date of this prospectus our
$70,000,000 aggregate principal amount
of junior subordinated debt securities,
Series A, also referred to as the
original junior subordinated debt
securities, for a like aggregate
principal amount of our junior
subordinated debt securities, Series B,
also referred to as the exchange debt
securities. We refer to the original
junior subordinated debt securities and
the exchange debt securities
collectively as the junior subordinated
debt securities. Together with the
Trust, we are making the exchange offer
in order to satisfy our respective
obligations under the registration
rights agreement relating to the
original capital securities. For a
description of the procedures for
tendering original capital securities,
please read "The Exchange
Offer--Procedures for Tendering
Original Capital Securities."
EXPIRATION DATE....................... 5:00 p.m., New York City time, on
_______, 2004 unless the exchange offer
is extended by us and the Trust, in
which case the expiration date will be
the latest date and time to which the
exchange offer is extended.
CONDITIONS TO THE EXCHANGE OFFER...... The exchange offer is subject to
certain conditions, which may be waived
by us and the Trust in our sole
discretion. The exchange offer is not
conditioned upon any minimum
liquidation amount of original capital
securities being tendered.
TERMS OF THE EXCHANGE OFFER........... We and the Trust reserve the right in
our sole and absolute discretion,
subject to applicable law, at any time
and from time to time, (i) to delay the
acceptance of the original capital
securities, (ii) to terminate the
exchange offer if certain specified
conditions have not been satisfied,
(iii) to extend the expiration date of
the exchange offer and retain all
original capital securities tendered as
a result of the exchange offer,
subject, however, to the right of
holders of original capital securities
to withdraw their tendered original
capital securities or (iv) to waive any
condition or otherwise amend the terms
of the exchange offer in any respect.
WITHDRAWAL RIGHTS..................... Tenders of original capital securities
may be withdrawn at any time on or
prior to the expiration date by
delivering a written notice of such
withdrawal to the exchange agent in
conformity with certain procedures as
set forth under "The Exchange
Offer--Withdrawal Rights."
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PROCEDURES FOR TENDERING ORIGINAL
CAPITAL SECURITIES..................... Certain brokers, dealers, commercial
banks, trust companies and other
nominees who hold original capital
securities through The Depository Trust
Company, or DTC, must effect tenders by
book entry transfer through DTC's
Automated Tender Offer Program, or
ATOP. Beneficial owners of original
capital securities registered in the
name of a broker, dealer, commercial
bank, trust company or other nominee
are urged to contact such person or
entity promptly if they wish to tender
original capital securities under the
exchange offer. Tendering holders of
original capital securities that do not
use ATOP must complete and sign a
letter of transmittal in accordance
with the instructions contained in such
letter and forward the same by mail,
facsimile transmission or hand
delivery, together with any other
required documents, to the exchange
agent, either with the certificates of
the original capital securities to be
tendered or in compliance with the
specified procedures for guaranteed
delivery of original capital
securities. Tendering holders of
original capital securities that use
ATOP will, by so doing, acknowledge
that they are bound by the terms of the
letter of transmittal. Letters of
transmittal and certificates
representing original capital
securities should not be sent to us or
the Trust. Such documents should only
be sent to the exchange agent.
RESALES OF EXCHANGE CAPITAL
SECURITIES.................. We and the Trust are making the
exchange offer in reliance on the
position of the staff of the SEC as set
forth in certain interpretive letters
addressed to third parties in other
transactions. However, neither we nor
the Trust has sought our own
interpretive letter and there can be no
assurance that the staff of the SEC
would make a similar determination with
respect to the exchange offer as it has
in such interpretive letters to third
parties. Based on these interpretations
by the staff of the SEC, and subject to
the two immediately following
sentences, we and the Trust believe
that the exchange capital securities
issued under this exchange offer in
exchange for original capital
securities may be offered for resale,
resold and otherwise transferred by a
holder of such exchange capital
securities, other than a holder who is
a broker-dealer, without further
compliance with the registration and
prospectus delivery requirements of the
Securities Act, provided that such
exchange capital securities are
acquired in the ordinary course of such
holder's business and that such holder
is not participating, and has no
arrangement or understanding with any
person to participate, in a
distribution, within the meaning of the
Securities Act, of such exchange
capital securities. However, any holder
of original capital securities who is
an affiliate of us or the Trust or who
intends to participate in the exchange
offer for the purpose of distributing
the exchange capital securities, or any
broker-dealer who purchased the
original capital securities from the
Trust to resell pursuant to Rule 144A
or any other available exemption under
the Securities Act:
o will not be able to rely on
the interpretations of the
staff of the SEC set forth in
the above mentioned
interpretive letters;
o will not be permitted or
entitled to tender such
original capital securities in
the exchange offer; and
o must comply with the
registration and prospectus
delivery requirements of the
Securities Act in connection
with any sale or other
transfer of such original
capital securities unless such
sale is made in
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reliance on an exemption from such requirements.
In addition, as described in this prospectus, if any broker-dealer holds original capital securities acquired for its own account as a result of market-making or other trading activities and exchanges such original capital securities for exchange capital securities, then such broker-dealer must deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of such exchange capital securities. Each holder of original capital securities who wishes to exchange original capital securities for exchange capital securities in the exchange offer will be required to represent that:
o it is not an affiliate of us or the Trust;
o any exchange capital securities to be received by it are being acquired in the ordinary course of its business;
o it has no arrangement or understanding with any person to participate in a distribution, within the meaning of the Securities Act, of such exchange capital securities; and
o if such holder is not a broker-dealer, such holder is not engaged in, and does not intend to engage in, a distribution, within the meaning of the Securities Act of such exchange capital securities.
Each broker-dealer that receives exchange capital securities for its own account in exchange for original capital securities, where such original capital securities were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus meeting the requirements of the Exchange Act in connection with any resale of such exchange capital securities. You should read "Plan of Distribution."
The letter of transmittal states that, by so acknowledging and by delivering a prospectus, a broker- dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act. Based on the position taken by the staff of the SEC in the interpretive letters referred to above, we and the Trust believe that participating broker-dealers who acquired original capital securities for their own accounts as a result of market-making activities or other trading activities may fulfill their prospectus delivery requirements with respect to the exchange capital securities received upon exchange of such original capital securities, other than original capital securities that represent an unsold allotment from the initial sale of the original capital securities, with a prospectus meeting the requirements of the Securities Act, which may be the prospectus prepared for an exchange offer so long as it contains a description of the plan of distribution with respect to the resale of such exchange capital securities.
Accordingly, this prospectus, as it may
be amended or supplemented from time to
time, may be used by a participating
broker-dealer in connection with
resales of exchange capital securities
received in exchange for original
capital securities
where such original capital securities
were acquired by such participating
broker-dealer for its own account as a
result of market-making or other
trading activities. Subject to certain
provisions set forth in the
registration rights agreement and to
the limitations described in this
prospectus under "The Exchange
Offer--Resales of Exchange Capital
Securities," we and the Trust have
agreed that this prospectus, as it may
be amended or supplemented from time to
time, may be used by a participating
broker-dealer in connection with
resales of such exchange capital
securities for a period ending 90 days
after the expiration date, subject to
extension under certain limited
circumstances, or, if earlier, when all
such exchange capital securities have
been disposed of by such participating
broker-dealer. Any participating
broker-dealer who is an affiliate of us
or the Trust may not rely on such
interpretive letters and must comply
with the registration and prospectus
delivery requirements of the Securities
Act in connection with any resale
transaction.
EXCHANGE AGENT........................ The exchange agent with respect to the
exchange offer is the institutional
trustee of the Trust, Wilmington Trust
Company. The address, telephone and
facsimile numbers of the exchange agent
are set forth in this prospectus under
"The Exchange Offer--Exchange Agent"
and in the letter of transmittal.
USE OF PROCEEDS....................... Neither we nor the Trust will receive
any cash proceeds from the issuance of
the exchange capital securities.
CERTAIN FEDERAL INCOME
TAX CONSIDERATIONS.................... The exchange of original capital
securities for exchange capital
securities will not be a taxable
exchange for federal income tax
purposes and you should not recognize
any taxable gain or loss or any
interest income as a result of such
exchange.
ERISA CONSIDERATIONS.................. You should review the information set
forth in this prospectus under "ERISA
Considerations" prior to tendering
original capital securities in the
exchange offer.
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THE EXCHANGE CAPITAL SECURITIES
SECURITIES OFFERED.................... Up to $70,000,000 aggregate liquidation
amount of exchange capital securities,
liquidation amount $1,000 per exchange
capital security, will have been
registered under the Securities Act.
The exchange capital securities will be
issued under the second amended and
restated declaration of trust, dated as
of July 29, 2004, relating to the Trust
by and among us, as Sponsor, Wilmington
Trust Company, as institutional
trustee, Wilmington Trust Company, as
Delaware trustee, and the
administrators, also referred to as the
trust agreement. The exchange capital
securities and any original capital
securities that remain outstanding
after consummation of the exchange
offer will vote together as a single
class for purposes of determining
whether holders of the requisite
percentage in outstanding liquidation
amount have taken certain actions or
exercised certain rights under the
trust agreement. The terms of the
exchange capital securities are
identical in all material respects to
the terms of the original capital
securities, except that the exchange
capital securities have been registered
under the Securities Act, will not be
subject to certain restrictions on
transfer applicable to the original
capital securities and will not provide
for any increase in the distribution
rate.
DISTRIBUTIONS......................... You will be entitled to receive
cumulative cash distributions at the
annual rate of 7.0% of the liquidation
amount of $1,000 per exchange capital
security. Distributions will accumulate
from the date the Trust issued the
original capital securities and will be
paid quarterly in arrears on January
15th, April 15th, July 15th and October
15th of each year, beginning on July
15, 2004. The record dates will be the
15th calendar day immediately preceding
any payment date. Because the exchange
offer will be consummated after June
30, 2004, which is the record date for
the July 15, 2004 payment date,
distributions were paid on the original
capital securities accumulated from and
after March 19, 2004 through July 14,
2004, and distributions will be paid on
the exchange capital securities from
and after July 15, 2004. The first
interest payment date for the exchange
debt securities will be October 15,
2004. The amount of each distribution
with respect to the exchange capital
securities will include amounts accrued
to, but excluding, the date the
distribution is due. Because of the
foregoing procedures regarding
distributions, the amount of the
distributions received by holders whose
original capital securities are
accepted for exchange will not be
affected by the exchange.
EXTENSION PERIODS..................... So long as no event of default relating
to the exchange debt securities has
occurred and is continuing, we have the
right, at one or more times, to defer
interest payments on the exchange debt
securities for up to 20 consecutive
quarterly periods. All such extensions
will end on an interest payment date
and will not extend beyond April 14,
2034, the stated maturity date of the
exchange debt securities, any optional
redemption date or special event
redemption date. During an extension
period, we are restricted, among other
matters, from paying dividends or
making distributions on our capital
stock or redeeming, repurchasing or
acquiring or making liquidation
payments with respect to our capital
stock, except in limited circumstances.
If we defer interest payments on the
exchange debt securities, the Trust
will also defer quarterly distributions
on the exchange capital securities
during the extension period. During
this extension period, the
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exchange debt securities will continue to accrue interest and the capital securities will continue to accumulate distributions. During any extension period, distributions will continue to accrue on the capital securities and on any accrued and unpaid distributions, compounded quarterly from the relevant distribution date. If the Trust defers distributions, you will still be required to accrue interest income and include it in your gross income for U.S. federal income tax purposes, even if you are a cash basis taxpayer.
RANKING........................... Our obligations under the exchange debt
securities are unsecured and
subordinated to payment of our senior
debt, to the extent and in the manner
set forth in the indenture governing
the exchange debt securities, referred
to as the indenture, and will be
effectively subordinated to all of the
existing and future liabilities and
preferred equity of our subsidiaries,
including Dime of Williamsburgh's
deposit liabilities. At March 31, 2004,
we had $25 million of senior debt
outstanding, consisting entirely of our
subordinated notes payable, and our
subsidiaries had $3.00 billion of total
liabilities and preferred equity
outstanding.
EXCHANGE GUARANTEE................... We are offering to exchange our
guarantee, also referred to as the
exchange guarantee, of payments of cash
distributions and payments in
liquidation of the Trust or redemption
of the exchange capital securities for
the existing guarantee, also referred
to as the original guarantee, in
respect of the original capital
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securities. We refer to the original guarantee and the exchange guarantee collectively as the guarantees. Under the trust agreement creating the Trust, our exchange debt securities and related indenture and our exchange guarantee, we will, on a subordinated basis, fully, irrevocably and unconditionally guarantee:
o payment of distributions on the exchange capital securities;
o payments on liquidation of the Trust; and
o payments on maturity or earlier redemption of the exchange capital securities.
If we do not make a payment on the exchange debt securities, the Trust will not have sufficient funds to make the related payment on the exchange capital securities. Our exchange guarantee does not assure the payment of distributions or other amounts when the Trust does not have sufficient funds to make that payment. Our obligations under the exchange guarantee are unsecured and junior in right to all present and future senior debt and will be effectively subordinated to all of the existing and future liabilities and preferred equity of our subsidiaries, including Dime of Williamsburgh's deposit liabilities.
Taken together, our obligations under the exchange guarantee, the exchange debt securities, the indenture and the second amended and restated declaration of trust, referred to as the trust agreement, will provide, on a subordinated basis, a full, irrevocable and unconditional guarantee of the Trust's payments of distributions and other amounts due on the capital securities.
DISTRIBUTION OF EXCHANGE
DEBT SECURITIES.................... At any time, we will have the right to
liquidate the Trust and cause the
exchange debt securities to be
distributed to holders of exchange
capital securities and common
securities in liquidation of the Trust,
subject to receipt of any required
regulatory approval and an opinion of
counsel that such liquidation and
distribution will not result in a
taxable event to holders. The exchange
debt securities will have terms and
conditions identical to the exchange
capital securities. If we elect to
liquidate the Trust and thereby cause
the exchange debt securities to be
distributed to holders of the exchange
capital securities we will, for
instance, have the same rights, subject
to the receipt of any required
regulatory approval, to redeem such
exchange debt securities as if the
exchange debt securities were held by
the Trust.
In the event of the involuntary or
voluntary liquidation, dissolution,
winding up or termination of the Trust
in which the exchange debt securities
are not distributed to holders, then
the holders of the exchange capital
securities will be entitled to receive,
for each exchange capital security
after satisfaction of creditors of the
Trust, a liquidation amount of $1,000
plus accumulated and unpaid
distributions thereon to, but
excluding, the date of payment. The
Trust will be able to make this
distribution in cash only if the
exchange debt securities are redeemed
by us.
MATURITY AND REDEMPTION............... The exchange debt securities will
mature on April 14, 2034, unless
redeemed prior to such date if certain
conditions are met. The Trust will
redeem the exchange capital securities
when we pay the exchange debt
securities at maturity or upon any
earlier redemption of the exchange debt
securities.
We may redeem all or part of the
exchange debt securities at any time on
or after April 15, 2009. In addition,
we may redeem the exchange debt
securities at our option, in whole but
not in part, prior to April 15, 2009
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if:
o certain tax events occur;
o there is a change in the manner in which the exchange capital securities would be treated for regulatory capital purposes; or
o there is a change in the Investment Company Act of 1940, referred to as the Investment Company Act, that requires the Trust to register under that law.
We may have to obtain regulatory approvals, including the approval of the OTS, before we redeem any exchange debt securities prior to maturity.
If we redeem the exchange debt securities on or after April 15, 2009, you will receive the liquidation amount of $1,000 per exchange capital security plus any accrued and unpaid distributions, including additional distributions accrued during an extension period and not paid to the date of redemption. If such redemption occurs prior to April 15, 2009, you will be entitled to a redemption price calculated as a premium. For more information, please refer to
"Description of Exchange Debt
Securities -- Special Event
Redemption."
TRANSFER RESTRICTION.................. The exchange capital securities will be
issued, and may be transferred,
12
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only in blocks having a liquidation
amount of not less than $100,000 (100
exchange capital securities). Any such
transfer of exchange capital securities
in a block having a liquidation amount
of less than $100,000 shall be deemed
to be void and of no legal effect
whatsoever.
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ABSENCE OF MARKET FOR THE
EXCHANGE CAPITAL SECURITIES........... The exchange capital securities will be
a new issue of securities for which
currently there is no market. Although
the initial purchaser intends to make a
market in the exchange capital
securities in a manner permitted under
applicable securities laws, the initial
purchaser is not obligated to do so and
any such market making may be
discontinued at any time without
notice. Accordingly, there can be no
assurance as to the development,
maintenance or liquidity of any trading
market for the exchange capital
securities. We do not intend to seek a
listing of the exchange capital
securities on any national securities
exchange or on The Nasdaq Stock Market.
The exchange capital securities are
expected to be eligible for quotation
on the Private Offering, Resales and
Trading through Automated Linkages
(PORTAL) System of the National
Association of Securities Dealers, Inc.
For more information, you should read
"Plan of Distribution."
RATINGS............................... Neither the original capital securities
nor the exchange capital securities
have been rated by a rating agency.
ERISA CONSIDERATIONS.................. For a discussion of certain prohibited
transactions and fiduciary duty issues
pertaining to purchases by or on behalf
of an employee benefit plan, you should
read "ERISA Considerations."
VOTING RIGHTS......................... As a holder of the exchange capital
securities, you will have no voting
rights, except in limited
circumstances. You should read
"Description of Exchange Capital
Securities Voting Rights; Amendment of
the Trust Agreement" for more
information.
RISK FACTORS.......................... For a discussion of considerations
relevant to an investment in the
exchange capital securities or the
exchange of original capital securities
for exchange capital securities which
should be carefully considered by you,
you should read Risk Factors.
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SELECTED CONSOLIDATED FINANCIAL AND OTHER DATA
The selected consolidated financial and other data presented below are derived in part from, and should be read in conjunction with, our consolidated financial statements, related notes and other financial information incorporated into this prospectus by reference. On July 18, 2002, our Board of Directors approved a change in our fiscal year end from June 30 to December 31. In order to further assist in the interpretive reading of the data below, we have added information related to the unaudited twelve month period ended December 31, 2002 and the unaudited six month period ended December 31, 2001. You should refer to "Available Information."
AT OR FOR
AT OR FOR THE
THE TWELVE AT OR FOR
THREE MONTHS THE
MONTHS ENDED TWELVE AT OR FOR
ENDED DECEMBER MONTHS ENDED THE SIX MONTHS
MARCH 31, 31, DECEMBER 31, ENDED DECEMBER 31, AT OR FOR THE TWELVE MONTHS ENDED JUNE 30,
-----------------------------------------------------------------------------------------------------------
2004 2003 2002 2002 2001 2002 2001 2000 1999(10)
-----------------------------------------------------------------------------------------------------------
Dollars in Thousands
FINANCIAL CONDITION
DATA:
Total assets........ $ 3,372,951 $2,971,661 $ 2,946,374 $2,946,374 $ 2,779,882 $2,810,132 $ 2,721,744 $ 2,502,139 2,247,615
Loans, net (1)....... 2,272,535 2,177,622 2,154,619 2,154,619 2,040,070 2,104,884 1,944,902 1,706,515 1,368,260
Mortgage-backed
securities......... 751,738 462,737 362,952 362,952 364,375 291,488 438,447 442,690 525,667
Investment
securities (2)..... 71,632 64,517 140,279 140,279 137,614 173,818 139,523 181,033 206,611
Federal funds sold
and other
short-term
investments......... 93,616 95,286 114,291 114,291 73,279 76,474 36,619 9,449 11,011
Goodwill............. 55,638 55,638 55,638 55,638 55,638 55,638 55,638 60,254 64,871
Deposits............. 2,272,667 2,041,678 1,927,175 1,927,175 1,595,362 1,780,034 1,428,432 1,219,148 1,238,933
Borrowings........... 721,977 571,675 675,541 675,541 872,547 697,717 995,288 1,014,027 731,660
Stockholders'
equity ............ 275,848 283,919 265,737 265,737 243,917 249,741 227,116 207,169 211,695
Tangible
stockholders'
equity ............. 217,804 228,026 206,325 206,325 180,954 189,827 164,513 149,464 145,562
OPERATING DATA:
Interest income...... $ 39,045 $ 169,115 $ 181,914 $ 90,469 $ 93,136 $ 184,581 $ 181,648 $ 165,623 135,390
Interest expense on
deposits and
borrowings.......... 14,929 71,063 91,790 43,278 53,732 102,244 114,043 98,820 77,219
Net interest income.. 24,116 98,052 90,124 47,191 39,404 82,337 67,605 66,803 58,171
Provision for losses. 60 288 240 120 120 240 740 240 240
Net interest income
after
provision for loan
losses.............. 24,056 97,764 89,884 47,071 39,284 82,097 66,865 66,563 57,931
Non-interest income.. 5,617 25,122 19,999 10,765 5,603 14,837 9,292 5,043 6,438
Non-interest expense 10,365 40,809 38,696 20,368 17,103 35,431 35,096 34,015 30,493
Income before income 19,308 82,077 71,187 37,468 27,784 61,503 41,061 37,591 33,876
tax.
Income tax expense .. 6,968 30,801 26,565 14,008 10,269 22,826 15,821 15,217 14,015
Net income .......... 12,340 51,276 44,622 23,460 17,515 38,677 25,240 22,374 19,861
FINANCIAL RATIOS AND
OTHER
DATA: (3)
Return on average
assets ............. 1.60% 1.67% 1.57% 1.62% 1.27% 1.40% 0.97% 0.93% 1.02%
Return on average
stockholders'
equity ............. 17.72 18.76 17.65 18.17 14.97 16.07 11.67 10.65 10.34
Stockholders' equity
to total assets at
end of period....... 8.18 9.55 9.02 9.02 8.77 8.89 8.34 8.28 9.42
Tangible equity to
tangible assets at
end of period....... 6.57 7.82 7.15 7.15 6.66 6.90 6.19 6.11 6.67
Loans to deposits at
end of period....... 100.65 107.39 112.60 112.60 128.85 119.11 137.24 141.18 111.66
Loans to
interest-earning
assets at end of
period.............. 71.38 77.89 77.85 77.85 78.13 79.65 76.13 73.10 65.05
Net interest spread
(4)................. 3.05 3.08 2.93 3.07 2.61 2.70 2.32 2.48 2.61
Net interest margin
(5)................. 3.29 3.36 3.33 3.41 3.01 3.12 2.76 2.91 3.11
Average
interest-earning
assets to average
interest-bearing
liabilities......... 111.46 111.60 111.64 111.88 110.58 110.99 109.33 110.04 112.33
Non-interest expense
to average assets... 1.34 1.33 1.36 1.40 1.24 1.28 1.35 1.41 1.57
Core non-interest
expense to average
assets (6).......... 1.31 1.30 1.28 1.37 1.21 1.25 1.14 1.24 1.37
Efficiency ratio (7). 35.55 33.05 36.49 36.41 38.09 37.29 46.25 46.33 47.84
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Core efficiency ratio (6) (7)....... 34.84 32.38 34.44 35.67 37.17 36.42 39.08 40.77 41.96 Effective tax rate... 36.09 37.53 37.32 37.39 36.96 37.11 38.53 40.48 41.37 Dividend payout ratio 39.39 30.10 25.00 25.81 27.14 24.61 33.63 34.74 30.36 PER SHARE DATA: Diluted earnings per share.............. $ 0.33 $ 2.06 $ 1.76 $ 0.93 $ 0.70 $ 1.54 $ 1.00 $ 0.84 $ 0.75 Cash dividends paid per share........... 0.13 0.62 0.44 0.24 0.19 0.38 0.34 0.29 0.23 Book value per share. 7.37 11.17 10.36 10.36 9.46 9.68 8.91 7.89 7.36 Tangible book value per share........... 5.82 8.97 8.04 8.04 7.01 7.35 6.45 5.69 5.06 ASSET QUALITY RATIOS AND OTHER DATA: Net charge-offs...... $ 30 $ 29 $ 274 $ 32 $ 87 $ 329 $ 66 $ 536 $ 201 Total non-performing loans .............. 1,381 525 2,116 2,116 1,899 2,123 3,058 4,421 3,001 Other real estate owned, net.......... - - 134 134 179 114 370 381 866 Non-performing loans to total loans ..... 0.06% 0.02% 0.10% 0.10% 0.09% 0.10% 0.16% 0.26% 0.22% Non-performing loans and real estate owned to total assets ............. 0.04 0.02 0.08 0.08 0.07 0.08 0.13 0.19 0.17 ALLOWANCE FOR LOAN LOSSES TO: Non-performing loans 1,085.59% 2,860.57% 730.53% 730.53% 815.80% 723.98% 505.53% 334.43% 502.53% Total loans (8)...... 0.66 0.68 0.71 0.71 0.75 0.72 0.79 0.86 1.09 REGULATORY CAPITAL RATIOS: (BANK ONLY) Tangible capital..... 7.16% 7.97% 7.19% 7.19% 6.69% 6.91% 6.10% 5.76% 5.83% Core capital......... 7.16 7.97 7.19 7.19 6.69 6.91 6.10 5.76 5.83 Risk-based capital... 14.45 15.03 13.17 13.17 13.17 12.94 12.57 11.62 11.45 EARNINGS TO FIXED CHARGES RATIOS (9): Including interest on deposits......... 2.29x 2.15x 1.78x 1.87x 1.52x 1.60x 1.36x 1.38x 1.44x Excluding interest on deposits......... 4.26 3.50 2.49 2.73 2.02 2.16 1.64 1.70 2.03 FULL SERVICE BRANCHES 20 20 20 20 18 20 18 18 19 |
(1) Loans, net represents gross loans (including loans held for sale) less
net deferred loan fees and allowance for loan losses.
(2) Amount includes investment in Federal Home Loan Bank of New York
capital stock.
(3) With the exception of end of period ratios, all ratios are based on
average daily balances during the indicated periods. Asset Quality
Ratios and Regulatory Capital Ratios are end of period ratios.
(4) The net interest spread represents the difference between the
weighted-average yield on interest-earning assets and the
weighted-average cost of interest-bearing liabilities.
(5) The net interest margin represents net interest income as a percentage
of average interest-earning assets.
(6) In calculating these ratios, amortization expense related to goodwill
and the core deposit intangible is excluded from non-interest expense.
(7) The efficiency ratio represents non-interest expense as a percentage of
the sum of net interest income and non-interest income, excluding any
gains or losses on sales of assets.
(8) Total loans represents loans, net, plus the allowance for loan losses.
(9) For purposes of computing the ratios of earnings to fixed charges,
earnings represent income before taxes, extraordinary items and the
cumulative effect of accounting changes plus fixed charges. Fixed
charges represent total interest expense, including and excluding
interest on deposits.
(10)On January 21, 1999, Dime Community completed the acquisition of
Financial Bancorp, Inc., the holding company of Financial Federal
Savings Bank, F.S.B., referred to as the FIBC Acquisition. The
consolidated operating results for the twelve months ended June 30,
1999 reflected the addition of earnings from the FIBC Acquisition for
the period January 21, 1999 through June 30, 1999. The FIBC Acquisition
was accounted for as a purchase transaction, generating $44.2 million
of goodwill.
RISK FACTORS
YOU SHOULD CAREFULLY REVIEW THE INFORMATION CONTAINED ELSEWHERE OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND SHOULD PARTICULARLY CONSIDER THE FOLLOWING FACTORS, WHICH DO NOT NECESSARILY APPEAR IN THE ORDER OF IMPORTANCE. INVESTORS SHOULD CONSIDER ALL OF THESE FACTORS TO BE IMPORTANT. BECAUSE HOLDERS OF THE EXCHANGE CAPITAL SECURITIES MAY RECEIVE EXCHANGE DEBT SECURITIES IN EXCHANGE THEREFOR UPON LIQUIDATION OF THE TRUST, PROSPECTIVE PURCHASERS OF THE EXHANGE CAPITAL SECURITIES ARE ALSO MAKING AN INVESTMENT DECISION WITH REGARD TO THE EXCHANGE DEBT SECURITIES AND SHOULD CAREFULLY REVIEW ALL THE INFORMATION REGARDING THE EXCHANGE DEBT SECURITIES CONTAINED IN THIS PROSPECTUS.
RISKS RELATED TO YOUR INVESTMENT IN THE EXCHANGE CAPITAL SECURITIES
YOU ARE SUBJECT TO REPAYMENT RISK BECAUSE THE ADOPTION OF RECENTLY PROPOSED REGULATORY CAPITAL TREATMENT CHANGES COULD RESULT IN A REDEMPTION OF THE EXCHANGE CAPITAL SECURITIES.
In late 2003, the Financial Accounting Standards Board, referred to as the FASB, issued Interpretation No. 46 (revised December 2003), CONSOLIDATION OF VARIABLE INTEREST ENTITIES, referred to as FIN 46(R), which addresses consolidation of variable interest entities. Generally, such entities must be consolidated by their primary beneficiary if the entities do not effectively disperse risks among the parties involved. As a result of adopting FIN 46(R), Dime Community has not consolidated the Trust.
On May 6, 2004, the Federal Reserve Board, referred to as the FRB, issued proposed rules that would continue to allow trust preferred securities to be included in "Tier 1" regulatory capital, subject to stricter quantitative and qualitative limits. Currently, trust preferred securities and qualifying perpetual preferred stock are limited in the aggregate to no more than 25% of a bank holding company's core capital elements. As proposed, the FRB's rule would retain trust preferred securities as an element of Tier 1 regulatory capital, but with stricter quantitative limitations following a three-year transition period. Under the proposed rule, as of March 31, 2007, the aggregate amount of trust preferred securities and cumulative perpetual preferred stock, as well as certain additional elements of Tier 1 capital, which are identified in the proposed rule, may not exceed 25% of a bank holding company's Tier 1 capital, net of goodwill. As of the date of this prospectus, the 25% limitation is limited to the aggregate amount of only trust preferred securities and cumulative perpetual preferred stock, and is calculated on a basis that includes goodwill. The proposed rule, if adopted, would effectively limit the amount of trust preferred securities that may be included in Tier 1 capital.
The proposed rule also requires that the terms of the subordinated debt issued to the trust must conform to the requirements of the FRB's subordinated debt policy statement, which establishes the requirements for subordinated debt to receive Tier 2 capital treatment. The proposed rule also states that with respect to trust preferred securities issued prior to May 31, 2004 (such as the original capital securities), the underlying subordinated debt need not comply with the FRB subordinated debt policy statement, provided the non-complying terms (i) have been commonly used by banking organizations, (ii) do not provide an unreasonably high degree of protection to the holder in circumstances other than bankruptcy, and (iii) do not effectively allow the holder in due course to stand ahead of senior or subordinated debt holders in the event of bankruptcy. Although we believe that the terms of the original subordinated debt fall within these safe harbor provisions for pre-May 31, 2004 issuances, there can be no assurance that the FRB would concur or that the final rule adopted by the FRB will retain or modify the safe harbor provisions and the grandfather date. Further, there can be no assurance that the FRB will treat the exchange debt securities the same as the original debt securities for purposes of the safe harbor provisions and the grandfather date.
There can be no assurance that the final rule adopted by the FRB will be as proposed or that the FRB will not further or otherwise limit the amount of trust preferred securities that may be included in Tier 1 capital. In addition, there can be no assurance that any changes to the current capital treatment of trust preferred securities would not trigger a capital event under the Indenture or provide incentive for Dime Community to redeem the exchange debt securities in accordance with their terms, in each case resulting in the redemption of exchange capital securities.
Although Dime Community, as a savings and loan holding company, is not subject to holding company capital requirements, if Tier 1 capital treatment were to be disallowed by the FRB in the future, then a special event redemption would occur and Dime Community would be able to redeem the exchange debt securities thereby causing a mandatory redemption of the exchange capital securities. Under such circumstance, no additional
cash distributions would be paid on the exchange capital securities after they were redeemed and you would lose whatever future potential income you may have expected to receive as a holder of the exchange capital securities and you may not be able to reinvest the redemption proceeds at a similar yield. If a special event redemption occurs prior to April 15, 2009, the redemption price would be at a premium, as set forth in "Description of Exchange Capital Securities -- Redemption" and "Description of Exchange Debt Securities -- Special Event Redemption".
THE TRUST WILL NOT BE ABLE TO MAKE PAYMENTS ON THE EXCHANGE CAPITAL SECURITIES TO YOU IF IT DOES NOT RECEIVE PAYMENTS FROM US ON THE EXCHANGE DEBT SECURITIES.
The ability of the Trust to make payments due on the exchange capital securities is solely dependent on us making payments on the exchange debt securities as and when required. If we default on our obligations to pay principal or interest on the exchange debt securities, the Trust will not have sufficient funds to make distribution, redemption or liquidation payments on the exchange capital securities. As a result, you will not be able to rely upon our guarantee for payment of these amounts. Instead, you may seek legal redress against us directly to collect payments owed to you or rely on the institutional trustee to enforce the rights of the Trust under the exchange debt securities against us.
Further, the exchange capital securities, the exchange guarantee, the exchange debt securities and the indenture do not limit our ability to incur additional debt, including debt that is senior to the exchange debt securities in priority of payment, or the ability of our subsidiaries to incur debt or issue preferred equity.
For more information on payments under the exchange guarantee and the exchange debt securities, you should read "Description of Exchange Debt Securities -- Subordination" and "Description of Exchange Guarantee -- Status of the Exchange Guarantee."
WE CANNOT MAKE PAYMENTS UNDER THE EXCHANGE GUARANTEE OR THE EXCHANGE DEBT SECURITIES IF WE DEFAULT ON OUR OBLIGATIONS THAT ARE MORE SENIOR.
Our obligations under the exchange guarantee and the exchange debt securities are unsecured and rank:
o junior to all of our other borrowings, except those borrowings that by their terms are equal;
o junior to all of our subsidiaries' liabilities, including Dime of Williamsburgh's deposit accounts and preferred equity; and
o senior to our common stock and preferred stock, if any.
This means that we cannot pay under the exchange guarantee or the exchange debt securities if we default on payments on our senior debt. In addition, if the maturity of our senior debt is accelerated, we cannot pay under the exchange guarantee or the exchange debt securities until all of our accelerated senior debt is paid in full. Finally, if we liquidate, go bankrupt or dissolve, we would not be permitted to pay under the exchange guarantee and the exchange debt securities until we have paid all of our senior liabilities. At March 31, 2004, we had $25 million of senior debt outstanding.
DIME OF WILLIAMSBURGH'S ABILITY TO PAY DIVIDENDS OR LEND FUNDS TO ITS AFFILIATES IS SUBJECT TO REGULATORY LIMITATIONS WHICH MAY PREVENT DIME COMMUNITY FROM MAKING PAYMENTS UNDER THE EXCHANGE DEBT SECURITIES.
We are a savings and loan association holding company regulated by the OTS, and almost all of our operating assets are owned by Dime of Williamsburgh. Dime of Williamsburgh is regulated by both the FDIC and the OTS. We are a legal entity separate and distinct from our subsidiaries. Holders of exchange debt securities should look only to us for payments on the exchange debt securities.
We rely primarily on dividends from Dime of Williamsburgh to meet our obligations for payment of corporate expenses, to pay cash dividends to our common stockholders, to engage in share repurchase programs and to pay principal of and interest on our debt, including principal of and interest on the exchange debt securities. The OTS limits all capital distributions by Dime of Williamsburgh directly or indirectly to us, including dividend
payments. As the subsidiary of a savings and loan association holding company, Dime of Williamsburgh must file a notice with the OTS for each capital distribution. However, if the total amount of all capital distributions (including each proposed capital distribution) for the applicable calendar year exceeds net income for that year to date plus the retained net income for the preceding two years, then Dime of Williamsburgh must file an application to receive the approval of the OTS for the proposed capital distribution. As of March 31, 2004, approximately $34.0 million was available for the payment of dividends to us without submission of an application for approval from the OTS.
In addition to the OTS limits, Dime of Williamsburgh may not pay dividends to us if, after paying those dividends, it would fail to meet the required minimum levels under risk-based capital guidelines and the minimum leverage and tangible capital ratio requirements. Under the prompt corrective action provisions of the Federal Deposit Insurance Act, Dime of Williamsburgh is prohibited from making capital distributions, including the payment of dividends, if, after making any capital distribution, Dime of Williamsburgh would become undercapitalized as defined under the Federal Deposit Insurance Act. Based on Dime of Williamsburgh's current financial condition, we do not expect that this provision will have any impact on the ability of Dime of Williamsburgh to pay dividends to us. Payment of dividends by Dime of Williamsburgh may also be restricted at any time at the discretion of the appropriate regulator if it deems the payment to constitute an unsafe or unsound banking practice.
We cannot assure you that Dime of Williamsburgh will be able to pay dividends to us at past levels, or at all, in the future. For additional information, you should read the section titled "Regulation" in our Annual Report on Form 10-K for the year ended December 31, 2003 which is incorporated into this prospectus by reference.
In addition to regulatory restrictions on the payment of dividends, Dime of Williamsburgh is subject to certain restrictions imposed by federal law on any extensions of credit it makes to its affiliates and on investments in stock or other securities of its affiliates. We are considered an affiliate of Dime of Williamsburgh. These restrictions prevent affiliates of Dime of Williamsburgh, including us, from borrowing from Dime of Williamsburgh, unless various types of collateral secure the loans. Federal law limits the aggregate amount of loans to and investments in any single affiliate to 10% of Dime of Williamsburgh's capital stock and surplus and also limits the aggregate amount of loans to and investments in all affiliates to 20% of Dime of Williamsburgh's capital stock and surplus. As of March 31, 2004, approximately $28.9 million of credit was available to us under these limitations.
Also, as a holding company, our right to receive any distribution of assets of any subsidiary, upon such subsidiary's liquidation or reorganization or otherwise (and thus your right to benefit indirectly from such distribution), is subject to the prior claims of creditors and preferred equity holders of that subsidiary, except to the extent we are also recognized as a creditor of that subsidiary. For example, if Dime of Williamsburgh, our only direct banking subsidiary, is liquidated or reorganized, depositors of Dime of Williamsburgh would have the right to receive distributions from Dime of Williamsburgh before us unless we were also recognized as a creditor of Dime of Williamsburgh. At March 31, 2004, Dime of Williamsburgh had total liabilities, including deposits and preferred equity, of $3.00 billion.
If we do not receive sufficient cash dividends or other funds from Dime of Williamsburgh, then it is unlikely that we will have sufficient funds to make payments on the exchange debt securities, thereby leaving insufficient funds for the Trust to make payments to you on your exchange capital securities.
WE CAN DEFER INTEREST PAYMENTS ON THE EXCHANGE DEBT SECURITIES, CAUSING YOUR PAYMENTS UNDER THE EXCHANGE CAPITAL SECURITIES TO STOP, WHICH WILL HAVE TAX CONSEQUENCES TO YOU AND MAY AFFECT THE MARKET PRICE OF THE EXCHANGE CAPITAL SECURITIES.
We have the right, at one or more times, unless an event of default exists relating to the exchange debt securities, to defer interest payments on the exchange debt securities for up to 20 consecutive quarterly periods, but not beyond April 14, 2034 or any date of earlier redemption. If we defer interest payments, the Trust will defer paying distributions to you on your exchange capital securities during the extension period. During any extension period, distributions will continue to accrue on the exchange capital securities and on any accrued and unpaid distributions, compounded quarterly from the relevant distribution date at the applicable distribution rate. During this time, we will be prohibited from declaring or paying cash dividends on our common stock and preferred stock,
if any, and making payments on our debt securities which rank equal to the exchange debt securities, if any. For more information, you should also read "Description of Exchange Capital Securities -- Distributions."
When any extension period ends, we are required to pay all interest then accrued and unpaid on the exchange debt securities, in which event we may elect to begin a new extension period subject to the limitations described above. There is no limitation on the number of times that we may elect to begin an extension period. You should read "Description of Exchange Capital Securities -- Distributions" and "Description of Exchange Debt Securities -- Option to Extend Interest Payment Date."
If we exercise our right to defer payments of interest on the exchange debt securities, you will be required to accrue income (as original issue discount) in respect of the deferred stated interest allocable to your exchange capital securities for U.S. federal income tax purposes, even though such interest will not be distributed to you. If you dispose of your exchange capital securities prior to the record date for payments on the exchange capital securities, you may have adverse tax consequences. Under these circumstances, you will be required to include accrued but unpaid interest and liquidated damages, if any, on the exchange debt securities allocable to the exchange capital securities through the date of disposition in your income. If interest and liquidated damages, if any, on the exchange debt securities are included in income under the original issue discount provisions, you would add this amount to your adjusted tax basis in your share of the underlying exchange debt securities deemed disposed. If your selling price is less than your adjusted tax basis, which will include all accrued but unpaid original issue discount interest and liquidated damages, if any, included in your income, you could recognize a capital loss which cannot be applied to offset ordinary income for U.S. federal income tax purposes, subject to exceptions. For more information on possible adverse tax consequences to you, you should read "Certain U.S. Federal Income Tax Consequences -- Interest Income and Original Issue Discount" and " -- Sales or Redemptions of Exchange Capital Securities."
As a result of our right to defer interest payments, the market price of the exchange capital securities, which represent preferred beneficial interests in the Trust, may be more volatile than the market prices of other securities that are not subject to such extension options. We do not currently intend to exercise our right to defer interest payments on the exchange debt securities. However, if we exercise this right in the future, the market price of the exchange capital securities is likely to be affected. The exchange capital securities may trade at a price that does not fully reflect the value of accrued but unpaid interest on the exchange debt securities. If you sell your exchange capital securities during an extension period, you may not receive the same return on your investment as someone else who continues to hold the exchange capital securities.
DISTRIBUTION OF EXCHANGE DEBT SECURITIES MAY HAVE A POSSIBLE ADVERSE EFFECT ON TRADING PRICES.
We have the right to dissolve the Trust at any time if such dissolution and any distribution of the exchange debt securities would not result in a taxable event to the holders of the exchange capital securities. If we dissolve the Trust, the Trust will be liquidated by distribution of the exchange debt securities to holders of the exchange capital securities and the common securities.
Under current U.S. federal income tax laws, a distribution of exchange debt securities to you on the dissolution of the Trust would not be a taxable event to you. However, if the Trust was to be classified for U.S. federal income tax purposes as an association taxable as a corporation at the time it is dissolved, the distribution of exchange debt securities to you would be a taxable event. In addition, if there is a change in law, a distribution of exchange debt securities to you on the dissolution of the Trust could also be a taxable event.
Your investment in the exchange capital securities may decrease in value if the exchange debt securities are distributed to you in liquidation of the Trust. We cannot predict the liquidity or market prices for the exchange debt securities that may be distributed. Accordingly, the exchange debt securities that you receive upon a distribution, or the exchange capital securities you hold pending such distribution, may trade at a discount to the price that you paid to purchase the exchange capital securities. Because you may receive the exchange debt securities, you must also make an investment decision with regard to the exchange debt securities. You should carefully review all of the information regarding the exchange debt securities contained in this prospectus.
IN THE EVENT WE REDEEM THE EXCHANGE DEBT SECURITIES BEFORE THEIR STATED MATURITY, YOU MAY NOT BE ABLE TO REINVEST YOUR PRINCIPAL AT THE SAME OR A HIGHER RATE OF RETURN.
Under the following circumstances, we may redeem the exchange debt securities before their stated maturity:
o We may redeem the exchange debt securities, in whole or in part, at any time on or after April 15, 2009.
o We may redeem the exchange debt securities in whole, but not in part, within 90 days after certain occurrences at any time prior to April 15, 2009. These occurrences may include adverse tax, investment company or bank regulatory developments. You should read "Description of Exchange Debt Securities -- Special Event Redemption."
You should assume that we will exercise our redemption option if we are able to obtain capital at a lower cost than we must pay on the exchange debt securities or if it is otherwise in our interest to redeem the exchange debt securities. If the exchange debt securities are redeemed, the Trust must redeem exchange capital securities and common securities having an aggregate liquidation amount equal to the aggregate principal amount of exchange debt securities redeemed, and you may be required to reinvest your principal at a time when you may not be able to earn a return that is as high as you were earning on the exchange capital securities.
YOU WILL HAVE LIMITED VOTING RIGHTS.
As a holder of exchange capital securities, you will have limited voting rights. You can vote only to modify certain terms of the exchange capital securities or to remove the institutional and Delaware trustees of the Trust upon a limited number of events. We, along with the institutional trustee and the administrators, may amend the trust agreement, without your consent, even if these actions adversely affect your interests, to ensure that the Trust:
o will continue to be classified as a grantor trust for U.S. federal income tax purposes; and
o will not be required to register as an "investment company" under the Investment Company Act.
You will not have any voting rights regarding us or the administrators or with respect to any matters submitted to a vote of the holders of the common securities. You should read "Description of Exchange Capital Securities -- Removal of Trustees" and " -- Voting Rights; Amendment of the Trust Agreement" for more information on your limited voting rights.
THE LIMITED COVENANTS RELATING TO THE EXCHANGE CAPITAL SECURITIES AND THE EXCHANGE DEBT SECURITIES DO NOT PROTECT YOU.
The covenants in the governing documents relating to the exchange capital securities and the exchange debt securities are limited. As a result, the governing documents do not protect you in the event of an adverse change in our financial condition or results of operations and do not prohibit us from entering into a highly leveraged or similar transaction. You should not consider the terms of the governing documents to be a significant factor in evaluating whether we will be able to comply with our obligations under the exchange debt securities or the exchange guarantee. In addition, the governing documents do not limit our ability, or the ability of our subsidiaries, to incur additional debt, including senior debt.
TRADING CHARACTERISTICS OF THE EXCHANGE CAPITAL SECURITIES MAY CREATE ADVERSE TAX CONSEQUENCES FOR YOU.
The exchange capital securities may trade at a price that does not reflect the value of the accrued but unpaid interest on the underlying exchange debt securities. If you dispose of your exchange capital securities between the record date for payments on the exchange capital securities, you may have adverse tax consequences. Under these circumstances, you will be required to include accrued but unpaid interest on the exchange debt securities allocable to the exchange capital securities through the date of disposition in your income. If interest on the exchange debt
securities is included in income under the original issue discount provisions, you would add this amount to your adjusted tax basis in your share of the underlying exchange debt securities deemed disposed. If your selling price is less than your adjusted tax basis, which will include all accrued but unpaid original issue discount interest included in your income, you could recognize a capital loss which cannot be applied to offset ordinary income for federal income tax purposes, subject to exceptions. You should read "Certain Federal Income Tax Consequences--Interest Income and Original Issue Discount" and "-- Sales or Redemptions of Exchange Capital Securities" for more information on possible adverse tax consequences to you.
YOUR FAILURE TO EXCHANGE ORIGINAL CAPITAL SECURITIES MAY ADVERSELY AFFECT YOUR ABILITY TO SELL SUCH SECURITIES.
The original capital securities have not been registered under the Securities Act or any state securities laws and therefore may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the Securities Act and any other applicable securities laws, or pursuant to an exemption from the applicable securities laws or in a transaction not subject to such laws, and in each case in compliance with certain other conditions and restrictions. Original capital securities which remain outstanding after consummation of the exchange offer will continue to bear a legend reflecting such restrictions on transfer. In addition, upon consummation of the exchange offer, holders of original capital securities which remain outstanding will not be entitled to any rights to have such original capital securities registered under the Securities Act or to any similar rights under the registration rights agreement, subject to certain limited exceptions. We and the Trust do not intend to register under the Securities Act any original capital securities which remain outstanding after consummation of the exchange offer, subject to such limited exceptions, if applicable. To the extent that original capital securities are tendered and accepted in the exchange offer, your ability to sell untendered original capital securities could be adversely affected.
The exchange capital securities and any original capital securities which remain outstanding after consummation of the exchange offer will vote together as a single class for purposes of determining whether holders of the requisite percentage in outstanding liquidation amount thereof have taken certain actions or exercised certain rights under the trust agreement. You should read "Description of Exchange Capital Securities--Voting Rights; Amendment of the Trust Agreement."
THE ABSENCE OF A PUBLIC MARKET AND RESTRICTIONS ON RESALE OF THE EXCHANGE CAPITAL SECURITIES MAY ADVERSELY AFFECT YOUR ABILITY TO SELL SUCH SECURITIES.
The original capital securities were issued to, and we believe such securities are currently owned by, a relatively small number of beneficial owners. The original capital securities have not been registered under the Securities Act and will be subject to restrictions on transferability if they are not exchanged for the exchange capital securities. Although the exchange capital securities may be resold or otherwise transferred by the holders, who are not affiliates of Dime Community or the Trust, without compliance with the registration requirements under the Securities Act, they will constitute a new issue of securities with no established trading market and will be transferable only in blocks having a liquidation amount of not less than $100,000 (100 exchange capital securities).
If a public trading market develops, future trading prices of the exchange capital securities will depend on many factors, including, among others, prevailing interest rates, our operating results and the market for similar securities. The initial purchaser has informed the Trust and us that it intends to make a market in the capital securities. However, the initial purchaser is not obligated to do so and any such activity may be terminated at any time without notice to the holders of the exchange capital securities. In addition, any market making activity will be subject to the limits of the Securities Act and may be limited during the pendency of the exchange offer. Accordingly, we cannot assure you that an active public or other market will develop for the exchange capital securities, or as to the liquidity of or the trading market for the exchange capital securities. If an active public market does not develop, the market price and liquidity of the exchange capital securities may be adversely affected. In addition, neither we nor the Trust intend to apply for listing of the exchange capital securities on any securities exchange or for quotation through the Nasdaq Stock Market, Inc. You should read "Plan of Distribution."
Notwithstanding the registration of the exchange capital securities in the exchange offer, holders who are `affiliates" (as defined under Rule 405 of the Securities Act) of us or the Trust may publicly offer for sale or resell the exchange capital securities only in compliance with the provisions of Rule 144 under the Securities Act.
Each broker-dealer that receives exchange capital securities for its own account in exchange for original capital securities, where such original capital securities were acquired by such broker-dealer as a result of market- making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such exchange capital securities. You should read "Plan of Distribution."
"WE ARE NOT OBLIGATED TO NOTIFY YOU OF DEFECTS OR IRREGULARITIES IN THE EXCHANGE OFFER PROCEDURES.
Subject to conditions set forth under "The Exchange Offer--Conditions to the Exchange Offer," issuance of the exchange capital securities in exchange for original capital securities under the exchange offer will be made only after a timely receipt by the Trust of:
o a book-entry confirmation evidencing the tender of such original capital securities through ATOP; or
o certificates representing such original capital securities, a properly completed and duly executed letter of transmittal, with any required signature guarantees, and all other required documents.
Therefore, holders of the original capital securities desiring to tender such original capital securities should allow sufficient time to ensure timely delivery. You should read "The Exchange Offer--Acceptance for Exchange and Issuance of Exchange Capital Securities" and "-- Procedures for Tendering Original Capital Securities." Neither we nor the Trust is under any duty to give notification of defects or irregularities with respect to the tenders of original capital securities for exchange.
RISK FACTORS RELATING TO DIME COMMUNITY BANCSHARES, INC.
OUR FOCUS ON MULTI-FAMILY AND COMMERCIAL REAL ESTATE LENDING MAY SUBJECT US TO GREATER RISK OF AN ADVERSE IMPACT ON OUR OPERATIONS FROM A DOWNTURN IN THE ECONOMY.
At March 31, 2004, Dime of Williamsburgh had multi-family loans totaling $1.80 billion in its portfolio, comprising 78.8% of the gross loan portfolio. Of Dime of Williamsburgh's multi-family loans, $1.59 billion, or 88.8%, were secured by apartment buildings and $208.9 million, or 11.6%, were secured by underlying cooperatives. Multi-family loans are generally viewed as exposing Dime of Williamsburgh to a greater risk of loss than one- to four-family residential loans and typically involve higher loan principal amounts. At March 31, 2004, Dime of Williamsburgh had 254 multi-family and commercial real-estate loans with principal balances greater than $2.0 million, representing an aggregate principal balance of $922.4 million. Although each multi-family loan is generally non-recourse, is underwritten based on the cash flow generated by the property and has a loan to value ratio of less than 75%, in a downturn in the economy, a borrower experiencing financial difficulties on one income producing property may default on all outstanding loans even if the properties securing the other loans are generating positive cash flow. These large loans, while underwritten to the same standards as all other multi-family and commercial real estate loans, tend to expose Dime of Williamsburgh to a higher degree of risk due to the potential impact of losses from any one loan or concentration of loans to one borrower relative to the size of Dime of Williamsburgh's capital position. As of March 31, 2004, none of these large loans or concentrations of loans to one borrower were in arrears nor in the process of foreclosure.
As part of Dime Community's strategic plan, it has increased its emphasis on commercial real estate loans over the past five years. A substantial portion of these commercial real estate loans are secured by mixed use properties. At March 31, 2004, $339.0 million, or 14.8%, of Dime of Williamsburgh's gross loans consisted of commercial real estate loans as compared to $88.8 million, or 6.41% in 1999. Loans secured by commercial real estate properties are generally larger and involve a greater degree of risk than residential mortgage (one- to four-family) and multi-family loans. Because payments on loans secured by commercial real estate properties are often dependent on successful operation or management of the properties, repayment of such loans are generally subject to a greater extent to the then prevailing conditions in the real estate market or the economy. Unlike mortgage loans, which generally are made on the basis of the borrower's ability to make repayment from his or her employment or other income, and which are secured by real property whose value tends to be more readily ascertainable, commercial real estate loans are of higher risk and typically are made on the basis of the borrower's ability to make repayment from the cash flow of the borrower's business. As a result, the availability of funds for the repayment of
commercial real estate loans may be substantially dependent on the success of the business itself. Furthermore, any collateral securing such loans may depreciate over time, may be difficult to appraise and may fluctuate in value based on the success of the business.
Multi-family and commercial real estate loans also involve a greater risk than one- to four- family residential mortgage loans because they usually have unpredictable cash flows and are more difficult to evaluate and monitor. Repayment of multi-family and commercial real estate loans is dependent, in large part, on sufficient cash flow from the property to cover operating expenses and debt service. Economic and real estate conditions and government regulations, such as rent control and rent stabilization laws, which are outside the control of the borrower or Dime of Williamsburgh, could impair the value of the security for the loan or the future cash flow of such properties. As a result, rental income might not rise sufficiently over time to meet increases in the loan rate at repricing or increases in overhead expenses (I.E., utilities, taxes, etc.). As a result, impaired loans are difficult to identify before they become problematic. In addition, if the cash flow from a property is reduced (for example, if leases are not obtained or renewed), the borrower's ability to repay the loan and the value of the security for the loan may be impaired. During the period July 1, 1998 through March 31, 2004, Dime of Williamsburgh's charge-offs related to its multi-family and commercial real estate loan portfolios totaled $217,000. As of March 31, 2004, Dime of Williamsburgh had no non-performing multi-family residential loans. We cannot assure you that, in the event of an economic downturn, we will not experience a significant increase in non-performing multi-family and commercial real estate loans or in charge-offs related to our multi-family and commercial real estate loan portfolio.
Although Dime of Williamsburgh seeks to minimize the above risks through its underwriting and credit administration policies, there can be no assurance that such risks would not materialize, in which event Dime Community's results of operations, financial condition, cash flows, business and prospects could be materially adversely affected.
DEPENDENCE ON ECONOMIC AND REAL ESTATE CONDITIONS AND GEOGRAPHIC CONCENTRATION IN MARKET AREA.
The Bank gathers deposits primarily from the communities and neighborhoods in close proximity to its branches. The Bank's primary lending area is the New York City metropolitan area, although its overall lending area is much larger, and extends approximately 150 miles in each direction from its corporate headquarters in Brooklyn. The majority of the Bank's mortgage loans are secured by properties located in its primary lending area, and approximately 75% of these loans are secured by real estate properties located in the New York City boroughs of Brooklyn, Queens and Manhattan.
As a result of this geographic concentration, Dime of Williamsburgh's results of operations depend largely upon economic conditions in this area. A deterioration in economic conditions in the New York metropolitan area could have a material adverse impact on the quality of Dime of Williamsburgh's loan portfolio and the demand for its products and services, and, accordingly, on our results of operations, cash flows, business, financial condition and prospects.
Dime of Williamsburgh's loan portfolio is predominantly secured by real estate. Dime of Williamsburgh's properties and substantially all of the real and personal property securing loans in Dime of Williamsburgh's portfolio are located in the New York metropolitan area. Conditions in the real estate markets, in which the collateral for Dime of Williamsburgh's mortgage loans are located, strongly influence the level of Dime of Williamsburgh's non-performing loans and the value of its collateral. Real estate values are affected by, among other things, changes in general or local economic conditions, supply and demand, changes in governmental rules or policies, the availability of loans to potential purchasers and acts of nature. Declines in real estate markets have in the past and may in the future negatively impact our results of operations, cash flows, business, financial condition and prospects. As of March 31, 2004, Dime of Williamsburgh had $1.4 million in non-performing assets.
Dime of Williamsburgh's allowance for loan losses is maintained at a level considered adequate by management to absorb inherent losses in its loan portfolio. The amount of inherent loan losses which could be ultimately realized is susceptible to changes in economic, operating and other conditions, including changes in interest rates, that could be beyond Dime of Williamsburgh's control. Such losses could exceed current estimates. Although management believes that Dime of Williamsburgh's allowance for loan losses is adequate, there can be no assurance that the allowance will prove sufficient to cover actual loan losses should such losses be realized. At March 31, 2004, the allowance for loan losses as a percentage of total loans was 0.66%.
A decline in economic or real estate conditions in the New York metropolitan area, as well as the other factors described above, would also adversely affect Dime Community's ability to manage its owned facilities. In particular, such factors could result in declines in rents and loss of tenants and negatively impact the marketability and value of such facilities.
INCREASES IN INTEREST RATES MAY REDUCE OUR PROFITABILITY.
Dime of Williamsburgh's primary source of income is its net interest income, which is the difference between the interest income earned on its interest earning assets and the interest expense incurred on its interest bearing liabilities. At March 31, 2004, our one year interest rate sensitivity gap (the difference between our interest rate sensitive assets maturing or repricing within one year and our interest rate sensitive liabilities maturing or repricing within one year, expressed as a percentage of total assets) was negative 16%. In a rising interest rate environment, an institution with a negative gap would generally be expected, absent the effects of other factors, to experience a greater increase in its cost of liabilities relative to its yield on assets, and thus decrease an institution's net interest income. In addition, the actual amount of time before mortgage loans and MBS are repaid can be significantly impacted by changes in mortgage redemption rates and market interest rates. Mortgage redemption rates will vary due to a number of factors, including the regional economy in the area where the underlying mortgages were originated, seasonal factors, demographic variables and the assumability of the underlying mortgages. However, the major factors affecting redemption rates are prevailing interest rates, related mortgage refinancing opportunities and competition. During the low interest rate environment that prevailed in 2002 and 2003, the Bank experienced high volumes of prepayments on its fixed mortgage loans and MBS as borrowers sought to refinance at the lower rates. This resulted in our average yield on interest-bearing assets declining 92 basis points in 2003 compared to 2002. In a rising rate environment, we will expect the levels of prepayments to decline significantly. In contrast, at March 31, 2004 we had $202.5 million in borrowings due to mature or reprice within a year and $714 million of certificates of deposit scheduled to mature within one year.
Based on our historical experience, if interest rates were to rise we would expect that the demand for multi-family loans would decline. As a result, we would expect that the Bank's loan origination volume would decrease and, consequently, negatively impact our interest income. In addition, if interest rates were to rise quickly and result in an economic downturn, we would expect the level of our non-performing loans to increase. Such an increase in non-performing loans may result in an increase in our allowance for loan losses and possible charge-offs, which would negatively impact our net income.
As a federal savings bank, Dime of Williamsburgh is required to monitor changes in the net present value of the expected future cash flows of its assets and liabilities, which is referred to as net portfolio value or NPV. In addition, we monitor our NPV ratio, which is our NPV divided by the estimated market value of total assets. The NPV ratio can be viewed as a corollary to the Bank's capital ratios. To monitor our overall sensitivity to changes in interest rates, we simulate the effect of instantaneous changes in interest rates of up to 200 basis points on our assets and liabilities. As of March 31, 2004, an immediate increase in interest rates of 200 basis points would have reduced our NPV by approximately 22.16%, resulting in an NPV ratio of 8.89%. There can be no assurance that future changes in our mix of assets and liabilities will not result in more extensive declines in our NPV and NPV ratio.
Interest rates do and will continue to fluctuate, and we cannot predict future Federal Reserve actions or other factors that will cause rates to change.
RISKS RELATED TO CHANGES IN LAWS, GOVERNMENT REGULATION AND MONETARY POLICY.
Dime Community and Dime of Williamsburgh are subject to extensive supervision, regulation and examination by the OTS, as Dime of Williamsburgh's chartering agency, and by the FDIC, as its deposit insurer. Such regulation limits the manner in which Dime Community and Dime of Williamsburgh conduct business, undertake new investments and activities and obtain financing. This regulation is designed primarily for the protection of the deposit insurance funds and the Bank's depositors, and not to benefit Dime of Williamsburgh's other or our creditors. The regulatory structure also gives the regulatory authorities extensive discretion in connection with their supervisory and enforcement activities and examination policies, including policies with respect to capital levels, the classification of assets and the establishment of adequate loan loss reserves for regulatory purposes.
For further information regarding the laws and regulations that affect us and Dime of Williamsburgh, you should read the section titled "Regulation" in our Annual Report on Form 10-K for the year ended December 31, 2003, which is incorporated into this prospectus by reference.
Financial institution regulation has been the subject of significant legislation in recent years, and may be the subject of further significant legislation in the future, none of which is in the control of Dime Community or Dime of Williamsburgh. Significant new laws or changes in, or repeals of, existing laws may cause Dime Community's results of operations to differ materially. Further, federal monetary policy, particularly as implemented through the OTS, significantly affects credit conditions for Dime Community, primarily through open market operations in United States government securities, the discount rate for bank borrowings and reserve requirements. A material change in any of these conditions would have a material impact on Dime of Williamsburgh, and therefore, on Dime Community's results of operations.
COMPETITION FROM OTHER FINANCIAL INSTITUTIONS IN ORIGINATING LOANS AND ATTRACTING DEPOSITS MAY ADVERSELY AFFECT OUR PROFITABILITY.
Dime of Williamsburgh's retail banking and a significant portion of its lending business is concentrated in the New York metropolitan area. The New York City banking environment is extremely competitive. The Bank's competition for loans exists principally from savings banks, commercial banks, mortgage banks and insurance companies. The Bank has faced sustained competition for the origination of multi-family residential and commercial real estate loans, which together comprised 93.6% of the Bank's loan portfolio at March 31, 2004. Management anticipates that the current level of competition for multi-family residential and commercial real estate loans will continue for the foreseeable future, and this competition may inhibit the Bank's ability to maintain its current level and pricing of such loans.
The Bank gathers deposits in direct competition with commercial banks, savings banks and brokerage firms, many among the largest in the nation. In addition, it must also compete for deposit monies against the stock markets and mutual funds, especially during periods of strong performance in the U.S. equity markets. Over the previous decade, consolidation in the financial services industry, coupled with the emergence of Internet banking, has altered the deposit gathering landscape and may increase competitive pressures on the Bank.
USE OF PROCEEDS
Neither we nor the Trust will receive any cash proceeds from the issuance of the exchange capital securities and the exchange guarantee. In consideration for issuing the exchange capital securities in exchange for original capital securities as described in this prospectus, the Trust will receive original capital securities in like liquidation amount. The original capital securities surrendered in exchange for the exchange capital securities will be retired and canceled.
All of the proceeds from the sale by the Trust of its original capital securities and common securities were invested by the Trust in the original junior subordinated debt securities. The net proceeds we received from the sale of the $70,000,000 aggregate principal amount of our original junior subordinated debt securities, were approximately $69,689,000 million, net of estimated commissions and other estimated offering expenses. We used approximately $62.0 million of the net proceeds to purchase investment securities.
ACCOUNTING TREATMENT
In January 2003, the FASB issued FIN 46 which provides guidance for determining when an entity should consolidate another entity that meets the definition of a variable interest entity. FIN 46 requires a variable interest entity to be consolidated if the company will absorb a majority of the expected losses, will receive a majority of the expected residual returns or both. Under this new guidance, the Trust will be considered to be a variable interest entity that does not satisfy the conditions for consolidation by Dime Community. Accordingly, for financial reporting purposes, we will treat the Trust as an unconsolidated subsidiary and, in our consolidated balance sheet, report the aggregate principal amount of the junior subordinated debt securities we issue to the Trust as liabilities, with offsetting assets for the cash and common securities we receive from the Trust. In our consolidated statements of operations, we will report interest payable on the junior subordinated debt securities as interest expense, offset by distributions we receive on the common securities.
Future reports we file under the Exchange Act will include a footnote to the consolidated financial statements stating that:
o we own 100% of the outstanding common securities of the Trust;
o the Trust is not consolidated in our financial statements;
o the sole assets of the Trust are the junior subordinated debt securities (specifying the principal amount, interest rate and maturity date of such junior subordinated debt securities); and
o our obligations under the trust agreement, the junior subordinated debt securities and related indenture and the guarantee, in the aggregate, constitute a full and unconditional guarantee by us of the obligations of the Trust under the capital securities.
We expect that the Trust will not be required to provide separate reports under the Exchange Act.
CAPITALIZATION
The following table sets forth the actual consolidated capitalization of Dime Community and its subsidiaries at March 31, 2004. The table should be read in conjunction with Dime Community's consolidated financial statements and notes thereto, included in the documents incorporated by reference herein. You should refer to "Available Information."
MARCH 31,
2004
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ACTUAL
(In thousands)
LONG-TERM BORROWINGS:
Federal Home Loan Bank of New York advances due beyond one year $ 371,500
Securities sold under agreements to repurchase due beyond one year 50,708
Subordinated notes payable 25,000
Junior Subordinated Debt Securities, net of Common Securities (1) 70,000
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TOTAL LONG TERM BORROWINGS $ 517,208
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STOCKHOLDERS' EQUITY:
Preferred stock ($0.01 par, 9,000,000 shares authorized, -----
none issued or outstanding at March 31, 2004
and December 31, 2003)
Common stock ($0.01 par, 125,000,000 shares authorized,
49,496,551 shares and 49,160,657 shares issued at March 31,
2004 and December 31, 2003, respectively,
and 37,409,181 shares and 38,115,111 shares outstanding
at
March 31, 2004 and December 31, 2003, respectively) $ 495
Additional paid-in capital 189,430
Retained earnings 239,275
Accumulated other comprehensive (loss) income, net of 1,521
deferred taxes
Unallocated common stock of Employee Stock Ownership (5,089)
Plan
Unearned and unallocated common stock of Recognition and (2,590)
Retention Plan
Common stock held by Benefit Maintenance Plan (5,584)
Treasury stock, at cost (12,087,370 shares and 11,045,546
shares at March 31, 2004 and 2003, respectively) (141,610)
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TOTAL STOCKHOLDERS' EQUITY $ 275,848
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TOTAL LONG-TERM BORROWINGS AND STOCKHOLDERS' EQUITY $ 793,056
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(1) As discussed under "Accounting Treatment", we are reporting the $72.2 aggregate principal amount of the junior subordinated debt securities we issue to the Trust as liabilities and record offsetting assets for the $70.0 million of cash and $2.2 million of common securities received from the Trust in our consolidated balance sheet. The $70 million aggregate liquidation amount of the original capital securities is equal to the aggregate principal amount of the junior subordinated debt securities less the aggregate liquidation amount of the common securities.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges were as follows for the periods indicated.
AT OR FOR
AT OR FOR THE THE TWELVE
THREE MONTHS MONTHS ENDED AT OR FOR THE TWELVE
ENDED MARCH 31, DECEMBER 31, MONTHS ENDED JUNE 30,
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2004 2003 2002 2002 2001 2000 1999
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RATIO OF EARNINGS TO FIXED
CHARGES (1):
Including interest on deposits.. 2.29x 2.15x 1.78x 1.60x 1.36x 1.38x 1.44x
Excluding interest on deposits . 4.26x 3.50x 2.49x 2.16x 1.64x 1.70x 2.03x
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DIME COMMUNITY BANCSHARES, INC.
Dime Community Bancshares, Inc. is a Delaware corporation and is the unitary savings and loan association holding company for Dime of Williamsburgh, a federally chartered stock savings bank.
At March 31, 2004, we had total assets of $3.37 billion, consisting primarily of $2.27 billion in total loans, net and $752 million in MBS. Multi-family residential mortgage loans comprised $1.80 billion of our $2.27 billion loan portfolio. As of March 31, 2004, on a consolidated basis, we had total liabilities of $3.00 billion, consisting primarily of deposits of $2.27 billion, 57.4% of which were core deposits (savings, money market, NOW and non-interest bearing checking accounts) and $722.0 million of borrowed funds, and total stockholders' equity of $275.8 million.
Dime Community neither owns nor leases any property but instead uses the premises and equipment of the Bank. Dime Community does not employ any persons other than certain officers of the Bank who do not receive any additional compensation as officers of Dime Community. Dime Community utilizes the support staff of the Bank from time to time, as required. Additional employees may be hired as deemed appropriate by Dime Community's management.
The Bank's principal business has been, and continues to be, gathering deposits from customers primarily within its market area, and investing those deposits primarily in multi-family residential mortgage loans, commercial real estate loans, one- to four-family residential mortgage loans, construction loans, consumer loans, MBS, obligations of the U.S. Government and Government Sponsored Entities, and corporate debt and equity securities. The Bank's revenues are derived principally from interest on its loan and securities portfolios. The Bank's primary sources of funds are deposits; loan amortization, prepayments and maturities; MBS amortization, prepayments and maturities; investment securities maturities; advances from the Federal Home Loan Bank of New York; securities sold under agreement to repurchase borrowings; and the sale of real estate loans to the secondary market.
The Bank's primary strategy is to increase its household and deposit market shares in the communities that it serves, either through direct marketing, acquisitions or purchases of deposits. The Bank also seeks to increase its product and service utilization for each individual depositor. In addition, the Bank's primary strategy includes the origination of, and investment in, mortgage loans, with an emphasis on multi-family residential loans. Multi-family residential lending is a significant business of the Bank, reflecting the fact that much of the housing in its primary lending area is multi-family housing. The Bank also strives to provide a stable source of liquidity and earnings through the purchase of investment grade securities; seeks to maintain the asset quality of its loans and other investments; and uses appropriate portfolio and asset/liability management techniques in an effort to manage the effects of interest rate volatility on its profitability and capital. Management of the Bank believes that multi-family residential loans provide advantages as investment assets. Initially, they offer a higher yield than one-to four-family loans or investment securities of comparable maturities or terms to repricing. Origination and processing costs for the Bank's multi-family residential and commercial real estate loans are lower per thousand dollars of originations than comparable one- to four-family loan costs. In addition, the Bank's market area generally has provided a stable flow of new and refinanced multi-family residential loan originations. In order to address the higher credit risk associated with multi-family residential lending, the Bank has developed underwriting standards that it believes are reliable in order to maintain consistent credit quality for its new loans. For further information regarding our operating strategies, you should read the sections titled "Business" and "Management's Discussion and Analysis of Financial Condition and Results of Operations" in our Annual Report on Form 10-K for the year ended December 31, 2003, which is incorporated into this prospectus by reference.
As a publicly-held unitary savings and loan holding company, Dime Community is required to file certain reports with, and otherwise comply with, the rules and regulations of the SEC under the federal securities laws and of the OTS. Dime of Williamsburgh is subject to extensive regulation, examination and supervision by the OTS, as its chartering agency, and the FDIC, as its deposit insurer.
Dime Community's principal executive offices are located at Dime Community Bancshares, Inc., 209 Havemeyer Street, Brooklyn, New York 11211, and its telephone number is (718) 782-6200.
Additional information about Dime Community and its subsidiaries is included in documents incorporated by reference in this prospectus. You should refer to "Available Information."
DIME COMMUNITY CAPITAL TRUST I
The Trust is a statutory trust created under Delaware law upon the filing of a certificate of trust with the Delaware Secretary of State. The Trust exists for the exclusive purposes of:
o issuing and selling the capital securities and the common securities;
o using the proceeds from the sale of the capital securities and the common securities to acquire the junior subordinated debt securities; and
o engaging in only those other activities necessary, advisable or incidental thereto, including the exchange offer.
The junior subordinated debt securities are the sole assets of the Trust, and, accordingly, payments under the junior subordinated debt securities will be the sole revenues of the Trust. We own all of the common securities of the Trust. The common securities will rank equal, and payments will be made thereon PRO RATA, with the capital securities, except that upon the occurrence and continuance of an event of default under the trust agreement, our rights as holder of the common securities to payments in respect of distributions and payments upon liquidation, redemption or otherwise will be subordinated to the rights of the holders of the capital securities. You should read "Description of Exchange Capital Securities -- Subordination of Common Securities."
We own common securities in a liquidation amount equal to at least 3% of the total capital of the Trust. The Trust has a term of approximately 35 years, but may dissolve earlier as provided in the trust agreement. The Trust's business and affairs are conducted by the administrators and the trustees, each of whom we appoint as holder of the common securities. The trustees for the Trust are Wilmington Trust Company, as the institutional trustee and as the Delaware trustee. The three administrators are our officers. Wilmington Trust Company, as institutional trustee, acts as sole indenture trustee under the trust agreement. Wilmington Trust Company also acts as guarantee trustee under the guarantee. You should read "Description of Exchange Guarantee" and "Description of Exchange Debt Securities." The holder of the common securities of the Trust or, if an event of default under the trust agreement has occurred and is continuing, the holders of a majority in liquidation amount of the capital securities, will be entitled to appoint, remove or replace the institutional trustee and/or the Delaware trustee. In no event will the holders of the capital securities have the right to vote to appoint, remove or replace the administrators; such voting rights will be vested exclusively in the holder of the common securities.
The duties and obligations of each trustee are governed by the trust agreement. As issuer of the junior subordinated debt securities, we will pay all fees, expenses, debts and obligations (other than the payments due on the capital securities) related to the Trust and the offering of the exchange capital securities and will pay, directly or indirectly, all ongoing costs, expenses and liabilities of the Trust. The principal executive office of the Trust is c/o Dime Community Bancshares, Inc., 209 Havemeyer Street, Brooklyn, New York 11211 and its telephone number is (718) 782-6200.
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
In connection with the sale of the original capital securities, we and the Trust entered into the registration rights agreement with the initial purchaser, under which we and the Trust agreed to file and to use our best efforts to cause to become effective with the SEC a registration statement with respect to the exchange of the original capital securities for exchange capital securities with terms identical in all material respects to the terms of the original capital securities. A copy of the registration rights agreement has been filed as an exhibit to the registration statement of which this prospectus is a part.
The exchange offer is being made to satisfy our and the Trust's contractual obligations under the registration rights agreement. The form and terms of the exchange capital securities are the same as the form and terms of the original capital securities except that the exchange capital securities have been registered under the Securities Act and will not provide for any increase in the distribution rate and certain restrictions on transfer
applicable to the original capital securities. In that regard, the original capital securities provide, among other matters, that, if a registration statement relating to the exchange offer has not been filed with the SEC on or prior to the 150th day after the issue date, the distribution rate borne by the original capital securities will increase by 25 basis points per annum until the exchange offer is consummated. Upon consummation of the exchange offer, holders of original capital securities will not be entitled to any increase in the distribution rate on the original capital securities or any further registration rights under the registration rights agreement, except under limited circumstances. You should read "Risk Factors."
The exchange offer is not being made to, nor will the Trust accept tenders for exchange from, holders of original capital securities in any jurisdiction in which the exchange offer or its acceptance would not be in compliance with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to the exchange offer means any person in whose name the original capital securities are registered on the books of the Trust or any other person who has obtained a properly completed bond power from the registered holder, or any person whose original capital securities are held of record by DTC who desires to deliver such original capital securities by book-entry transfer at DTC.
Under the exchange offer, we will exchange as soon as practicable after the date of this prospectus the original guarantee for the exchange guarantee and the original junior subordinated debt securities, in an amount corresponding to the original capital securities accepted for exchange, for a like aggregate principal amount of the exchange debt securities. The exchange guarantee and exchange debt securities have been registered under the Securities Act.
TERMS OF THE EXCHANGE OFFER
The Trust hereby offers, upon the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, to exchange up to $70,000,000 aggregate liquidation amount of exchange capital securities for a like aggregate liquidation amount of original capital securities properly tendered on or prior to the expiration date and not properly withdrawn in accordance with the procedures described below. The Trust will issue, promptly after the expiration date, an aggregate liquidation amount of up to $70,000,000 of exchange capital securities in exchange for a like principal amount of outstanding original capital securities tendered and accepted in connection with the exchange offer. Holders may tender their original capital securities in whole or in part in a liquidation amount of not less than $100,000 (100 capital securities) or any integral multiple of $1,000 liquidation amount (one capital security) in excess of $100,000.
The exchange offer is not conditioned upon any minimum liquidation amount of original capital securities being tendered. As of the date of this prospectus, $70,000,000 aggregate liquidation amount of the original capital securities is outstanding.
Holders of original capital securities do not have any appraisal or dissenters' rights in connection with the exchange offer. Original capital securities which are not tendered for or are tendered but not accepted in connection with the exchange offer will remain outstanding and be entitled to the benefits of the trust agreement, but will not be entitled to any further registration rights under the registration rights agreement, except under limited circumstances. You should read "Risk Factors" and "Description of Original Capital Securities."
If any tendered original capital securities are not accepted for exchange because of an invalid tender, the occurrence of certain other events set forth in this prospectus or otherwise, certificates for any such unaccepted original capital securities will be returned, without expense, to the tendering holder promptly after the expiration date.
Holders who tender original capital securities in connection with the exchange offer will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of original capital securities in connection with the exchange offer. We will pay all charges and expenses, other than certain applicable taxes described below, in connection with the exchange offer. You should read "-- Fees and Expenses."
Neither we, our Board of Directors nor any trustee of the Trust makes any recommendation to you as to whether to tender or refrain from tendering all or any portion of your original capital securities pursuant to the exchange offer. In addition, no one has been authorized to make any such recommendation. You must make your own decisions whether to tender pursuant to the exchange offer and, if so, the aggregate amount of original capital securities to tender based upon your own financial positions and requirements.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "expiration date" means 5:00 p.m., New York City time, on _______, 2004, unless we or the Trust extends the exchange offer, in which case the term "expiration date" shall mean the latest date and time to which the exchange offer is extended.
We and the Trust expressly reserve the right in our sole and absolute discretion, subject to applicable law, at any time and from time to time:
o to delay the acceptance of the original capital securities for exchange;
o to terminate the exchange offer, whether or not any original capital securities have theretofore been accepted for exchange, if the Trust determines, in its sole and absolute discretion, that any of the events or conditions referred to under "-- Conditions to the Exchange Offer" have occurred or exist or have not been satisfied;
o to extend the expiration date of the exchange offer and retain all original capital securities tendered under the exchange offer, subject, however, to the right of holders of original capital securities to withdraw their tendered original capital securities as described under "-- Withdrawal Rights;" and
o to waive any condition or otherwise amend the terms of the exchange offer in any respect.
If the exchange offer is amended in a manner determined by us and the Trust to constitute a material change, or if we and the Trust waive a material condition of the exchange offer, we and the Trust will promptly disclose such amendment by means of a prospectus supplement that will be distributed to the holders of the original capital securities, and we and the Trust will extend the exchange offer to the extent required by Rule l4e--l under the Exchange Act.
Any such delay in acceptance, extension, termination, waiver or amendment will be followed promptly by oral or written notice to the exchange agent and by making a public announcement, and such announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. Without limiting the manner in which we and the Trust may choose to make any public announcement and subject to applicable law, we and the Trust shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by issuing a release to an appropriate news agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF EXCHANGE CAPITAL SECURITIES
Upon the terms and subject to the conditions of the exchange offer, the Trust will exchange, and will issue to the exchange agent, exchange capital securities for original capital securities validly tendered and not withdrawn promptly after the expiration date.
In all cases, delivery of exchange capital securities in exchange for
original capital securities tendered and accepted for exchange under the
exchange offer will be made only after timely receipt by the exchange agent of
(i) the book-entry confirmation described below under "-- Procedures for
Tendering Original Capital Securities--Book-Entry Transfer" or (ii) certificates
representing such original capital securities, the letter of transmittal (or
facsimile thereof) , properly completed and duly executed, with any required
signature guarantees, and any other documents required by the letter of
transmittal.
Subject to the terms and conditions of the exchange offer, the Trust will be deemed to have accepted for exchange, and thereby exchanged, original capital securities validly tendered and not withdrawn as, if and when the Trust gives oral or written notice to the exchange agent of the Trust's acceptance of such original capital securities for exchange under the exchange offer. The exchange agent will act as agent for the Trust for the purpose of receiving tenders of book-entry confirmations or certificates representing original capital securities, letters of transmittal and related documents, and as agent for tendering holders for the purpose of receiving book-entry confirmations or certificates representing original capital securities, letters of transmittal and related documents and transmitting exchange capital securities to validly tendering holders. Such exchange will be made promptly after the expiration date. If for any reason whatsoever, acceptance for exchange or the exchange of any original capital securities tendered pursuant to the exchange offer is delayed, whether before or after the Trust's acceptance for exchange of original capital securities, or the Trust extends the exchange offer or is unable to accept for exchange or exchange original capital securities tendered under the exchange offer, then, without prejudice to the Trust's rights set forth in this prospectus, the exchange agent may, nevertheless, on behalf of the Trust and subject to Rule l4e-l (c) under the Exchange Act, retain tendered original capital securities and such original capital securities may not be withdrawn except to the extent tendering holders are entitled to withdrawal rights as described under "-- Withdrawal Rights."
In accordance with the letter of transmittal, a holder of original capital securities will warrant and agree that it has full power and authority to tender, exchange, sell, assign and transfer the original capital securities, that the Trust will acquire good, marketable and unencumbered title to the tendered original capital securities, free and clear of all liens, restrictions, charges and encumbrances, and the original capital securities tendered for exchange are not subject to any adverse claims or proxies. Such holder also will warrant and agree that it will, upon request, execute and deliver any additional documents deemed by the Trust or the exchange agent to be necessary or desirable to complete the exchange, sale, assignment, and transfer of the original capital securities tendered under the exchange offer. Tendering holders of original capital securities that use ATOP will, by so doing, acknowledge that they are bound by the terms of the letter of transmittal.
PROCEDURES FOR TENDERING ORIGINAL CAPITAL SECURITIES
VALID TENDER. Except as set forth in this prospectus, in order for original capital securities to be validly tendered under the exchange offer, a properly completed and duly executed letter of transmittal (or facsimile thereof), with any required signature guarantees and any other required documents, must be received by the exchange agent at its address set forth under "-- Exchange Agent," and, in addition, one of the following:
o tendered original capital securities must be received by the exchange agent;
o such original capital securities must be tendered pursuant to the procedures for book-entry transfer set forth in this prospectus and a book-entry confirmation must be received by the exchange agent, in each case on or prior to the expiration date; or
o the guaranteed delivery procedures set forth in this prospectus must be complied with.
If less than all of the original capital securities are tendered, a tendering holder should fill in the amount of original capital securities being tendered in the appropriate box on the letter of transmittal or so indicate in an agent's message in lieu of the letter of transmittal. The entire amount of original capital securities delivered to the exchange agent will be deemed to have been tendered unless otherwise indicated.
The method of delivery of the book-entry confirmations or certificates, the letter of transmittal and all other required documents is at the option and sole risk of the tendering holder, and delivery will be deemed made only when actually received by the exchange agent. If delivery is by mail, we recommend using registered mail, return receipt requested, properly insured, or an overnight delivery service. In all cases, sufficient time should be allowed to ensure timely delivery.
BOOK-ENTRY TRANSFER. For purposes of the exchange offer, the exchange agent will establish an account with respect to the original capital securities at DTC as soon as practicable. Any tendering financial institution that is a participant in DTC's book-entry transfer facility system must make a book-entry delivery of the original capital securities by causing DTC to transfer such original capital securities into the exchange agent's account at DTC in
accordance with DTC's ATOP procedures for transfers. Such holder of original capital securities using ATOP should transmit its acceptance to DTC on or prior to the expiration date, or comply with the guaranteed delivery procedures set forth below. DTC will verify such acceptance, execute a book-entry transfer of the tendered original capital securities into the exchange agent's account at DTC and then send to the exchange agent confirmation of such book-entry transfer, including an agent's message confirming that DTC has received an express acknowledgment from such holder that such holder has received and agrees to be bound by the letter of transmittal and that we and the Trust may enforce the letter of transmittal against such holder.
A beneficial owner of original capital securities that are held by or registered in the name of a broker, dealer, commercial bank, trust company or other nominee or custodian is urged to contact such entity promptly if such beneficial owner wishes to participate in the exchange offer.
CERTIFICATES. If the tender is not made through ATOP, certificates representing original capital securities, as well as the letter of transmittal, or facsimile thereof, properly completed and duly executed, with any required signature guarantees, and any other documents required by the letter of transmittal, must be received by the exchange agent at its address set forth under "-- Exchange Agent" on or prior to the expiration date in order for such tender to be effective, or the guaranteed delivery procedure set forth herein must be complied with.
If less than all of the original capital securities are tendered, a tendering holder should fill in the amount of original capital securities being tendered in the appropriate box on the letter of transmittal. The entire amount of original capital securities delivered to the exchange agent will be deemed to have been tendered unless otherwise indicated.
SIGNATURE GUARANTEES. Certificates for the original capital securities need not be endorsed and signature guarantees on the letter of transmittal are unnecessary unless:
o a certificate for the original capital securities is registered in a name other than that of the person surrendering the certificate; or
o the holder completes the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" in the letter of transmittal.
In the case of the above conditions, such certificates for original
capital securities must be duly endorsed or accompanied by a properly executed
bond power, with the endorsement or signature on the bond power and on the
letter of transmittal guaranteed by a firm or other entity identified in Rule
l7Ad-l5 under the Exchange Act as an "eligible guarantor institution," including
(as such terms are defined therein) : (a) a bank; (b) a broker, dealer,
municipal securities broker or dealer or government securities broker or dealer;
(c) a credit union; (d) a national securities exchange, registered securities
association or clearing agency; or (e) a savings association that is a
participant in a Securities Transfer Association, unless the certificates are
surrendered on behalf of such eligible institution. You should read Instruction
1 to the letter of transmittal.
DELIVERY. The method of delivery of the book-entry confirmation or certificates representing tendered original capital securities, the letter of transmittal, and all other required documents is at the option and sole risk of the tendering holder, and delivery will be deemed made only when actually received by the exchange agent. If delivery is by mail, registered mail, return receipt requested, properly insured, or an overnight delivery service is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
Notwithstanding any other provision hereof, the delivery of exchange capital securities in exchange for original capital securities tendered and accepted for exchange pursuant to the exchange offer will in all cases be made only after timely receipt by the exchange agent of:
o a book-entry confirmation with respect to such original capital securities; or
o certificates representing original capital securities and a properly completed and duly executed letter of transmittal, or facsimile thereof, together with any required signature guarantees and any other documents required by the letter of transmittal.
Accordingly, the delivery of exchange capital securities might not be made to all tendering holders at the same time, and will depend upon when book-entry confirmations with respect to original capital securities or certificates representing original capital securities and other required documents are received by the exchange agent.
Delivery of documents to DTC in accordance with DTC's procedures does not constitute delivery to the exchange agent.
GUARANTEED DELIVERY. If a holder desires to tender original capital securities under the exchange offer and the certificates for such original capital securities are not immediately available or time will not permit all required documents to reach the exchange agent on or prior to the expiration date, or the procedure for book-entry transfer cannot be completed on a timely basis, such original capital securities may nevertheless be tendered, provided that all of the following guaranteed delivery procedures are complied with:
o such tenders are made by or through an eligible institution;
o properly completed and duly executed notice to the exchange agent guaranteeing delivery to the exchange agent of either certificates representing original capital securities or a book-entry confirmation in compliance with the requirements set forth in this prospectus, referred to as the notice of guaranteed delivery, substantially in the form accompanying the letter of transmittal, is received by the exchange agent, as provided herein, on or prior to expiration date; and
o a book-entry confirmation or the certificates representing all tendered original capital securities, in proper form for transfer, and any other documents required by the letter of transmittal, are, in any case, received by the exchange agent within three Nasdaq National Market trading days after the date of execution of such notice of guaranteed delivery.
In addition, in order to utilize the guaranteed delivery procedure to tender original capital securities in certificated form pursuant to the exchange offer, a completed, signed and dated letter of transmittal relating to the original capital securities (or facsimile thereof) must be received by the exchange agent on or prior to the expiration date.
The notice of guaranteed delivery may be delivered by hand, or transmitted by facsimile or mail to the exchange agent and must include a guarantee by an eligible institution in the form set forth in such notice.
The Trust's acceptance for exchange of original capital securities tendered in compliance with the procedures described above will constitute a binding agreement between the tendering holder and the Trust upon the terms and subject to the conditions of the exchange offer.
DETERMINATION OF VALIDITY. We and the Trust will determine all questions as to the form of documents, validity, eligibility, including time of receipt, and acceptance for exchange of any tendered original capital securities, in our sole discretion, and the determination shall be final and binding on all parties. We and the Trust reserve the absolute right, in our sole and absolute discretion, to reject any and all tenders determined by us not to be in proper form or the acceptance of which, or exchange for, may, in the opinion of counsel to us and the Trust, be unlawful. We and the Trust also reserve the absolute right, subject to applicable law, to waive any of the conditions of the exchange offer as set forth under "-- Conditions to the Exchange Offer" or any condition or irregularity in any tender of original capital securities of any particular holder whether or not similar conditions or irregularities are waived in the case of other holders.
The Trust's and our interpretation of the terms and conditions of the exchange offer, including the letter of transmittal and the instructions thereto, will be final and binding. No tender of original capital securities will be deemed to have been validly made until all irregularities with respect to such tender have been cured or waived. Neither us, the Trust, any affiliates or assigns of us or the Trust, the exchange agent nor any other person shall be under any duty to give any notification of any irregularities in tenders or incur any liability for failure to give any such notification.
If any letter of transmittal, endorsement, bond power, power of attorney, or any other document required by the letter of transmittal is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity, such person must so indicate when signing, and unless waived by us and the Trust, proper evidence satisfactory to us and the Trust, in our sole discretion, of such person's authority to so act must be submitted.
RESALES OF EXCHANGE CAPITAL SECURITIES
The Trust is making the exchange offer for the original capital securities in reliance on the position of the staff of the SEC as set forth in certain interpretive letters addressed to third parties in other transactions. However, neither we nor the Trust sought our own interpretive letter and there can be no assurance that the staff of the SEC would make a similar determination with respect to the exchange offer as it has in such interpretive letters to third parties. Based on these interpretations by the staff of the SEC, and subject to the two immediately following sentences, we and the Trust believe that exchange capital securities issued under this exchange offer in exchange for original capital securities may be offered for resale, resold and otherwise transferred by a holder, other than a holder who is a broker-dealer, without further compliance with the registration and prospectus delivery requirements of the Securities Act, provided that such exchange capital securities are acquired in the ordinary course of such holder's business and that such holder is not participating, and has no arrangement or understanding with any person to participate, in a distribution, within the meaning of the Securities Act, of such exchange capital securities. However, any holder of original capital securities who is an affiliate of us or the Trust or who intends to participate in the exchange offer for the purpose of distributing exchange capital securities, or any broker-dealer who purchased original capital securities from the Trust to resell pursuant to Rule l44A or any other available exemption under the Securities Act:
o will not be able to rely on the interpretations of the staff of the SEC set forth in the above-mentioned interpretive letters;
o will not be permitted or entitled to tender such original capital securities in the exchange offer; and
o must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or other transfer of such original capital securities or, if distributed, exchange debt securities, unless such sale is made in reliance on an exemption from such requirements.
In addition, as described below, if any broker-dealer holds original capital securities acquired for its own account as a result of market-making or other trading activities and exchanges such original capital securities for exchange capital securities, then such broker-dealer must deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of such exchange capital securities.
Each holder of original capital securities who wishes to exchange original capital securities for exchange capital securities in the exchange offer will be required to represent that:
o it is not an affiliate of us or the Trust;
o any exchange capital securities to be received by it are being acquired in the ordinary course of its business;
o it has no arrangement or understanding with any person to participate in a distribution, within the meaning of the Securities Act, of such exchange capital securities; and
o if such holder is not a broker-dealer, such holder is not engaged in, and does not intend to engage in, a distribution, within the meaning of the Securities Act, of such exchange capital securities.
We and the Trust may require such holder, as a condition to such holder's eligibility to participate in the exchange offer, to furnish to us and the Trust (or an agent thereof) in writing information as to the number of "beneficial owners," within the meaning of Rule 13d-3 under the Exchange Act, on behalf of whom such holder holds the original capital securities to be exchanged in the exchange offer. Each broker-dealer that receives exchange capital securities for its own account as a result of the exchange offer must acknowledge that it acquired
the original capital securities for its own account as the result of market-making activities or other trading activities and must agree that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such exchange capital securities. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act. Based on the position taken by the staff of the SEC in the interpretive letters referred to above, we and the Trust believe that participating broker-dealers who acquired original capital securities for their own accounts as a result of market-making activities or other trading activities may fulfill their prospectus delivery requirements with respect to the exchange capital securities received upon exchange of such original capital securities, other than original capital securities which represent an unsold allotment from the initial sale of the original capital securities, with a prospectus meeting the requirements of the Securities Act, which may be the prospectus prepared for an exchange offer so long as it contains a description of the plan of distribution with respect to the resale of such exchange capital securities. Accordingly, this prospectus, as it may be amended or supplemented from time to time, may be used by a participating broker-dealer during the period referred to below in connection with resales of exchange capital securities received in exchange for original capital securities where such original capital securities were acquired by such participating broker-dealer for its own account as a result of market-making or other trading activities. Subject to certain provisions set forth in the registration rights agreement, we and the Trust have agreed that this prospectus, as it may be amended or supplemented from time to time, may be used by a participating broker-dealer in connection with resales of such exchange capital securities for a period ending 90 days after the expiration date, subject to extension under certain limited circumstances described below, or earlier when all such exchange capital securities have been disposed of by such participating broker-dealer. You should read "Plan of Distribution." However, a participating broker-dealer who intends to use this prospectus in connection with the resale of exchange capital securities received in exchange for original capital securities pursuant to the exchange offer must notify us or the Trust, or cause us or the Trust to be notified, on or prior to the expiration date, that it is a participating broker-dealer. Such notice may be given in the space provided for that purpose in the letter of transmittal or may be delivered to the exchange agent at the address set forth herein under "-- Exchange Agent." Any participating broker-dealer who is an affiliate of us or the Trust may not rely on such interpretive letters and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.
Each participating broker-dealer who surrenders original capital securities under the exchange offer will be deemed to have agreed, by execution of the letter of transmittal, that upon receipt of notice from us or the Trust of the occurrence or discovery of:
o any fact which makes any statement contained or incorporated by reference in this prospectus untrue in any material respect;
o any fact which causes this prospectus to omit to state a material fact necessary in order to make the statements contained or incorporated by reference herein, in light of the circumstances under which they were made, not misleading; or
o the occurrence of certain other events specified in the registration rights agreement,
such participating broker-dealer will suspend the sale of exchange capital securities, the exchange guarantee or the exchange debt securities, as applicable, pursuant to this prospectus until we or the Trust has amended or supplemented this prospectus to correct such misstatement or omission and has furnished copies of the amended and supplemented prospectus to such participating broker- dealer, or we or the Trust has given notice that the sale of the exchange capital securities, or the exchange guarantee or the exchange debt securities, as applicable, may be resumed, as the case may be.
If we or the Trust gives such notice to suspend the sale of the exchange capital securities, the exchange guarantee or the exchange debt securities, as applicable, the 90-day period referred to above shall be extended during which participating broker-dealers are entitled to use this prospectus in connection with the resale of exchange capital securities by the number of days during the period from and including the date of the giving of such notice to and including the date when participating broker-dealers shall have received copies of the amended or supplemented prospectus necessary to permit resales of the exchange capital securities or to and including the date on which we or the Trust has given notice that the sale of exchange capital securities, the exchange guarantee or the exchange debt securities, as applicable, may be resumed, as the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided in this prospectus, tenders of original capital securities may be withdrawn at any time on or prior to the expiration date.
In order for a withdrawal to be effective, a written or facsimile transmission of such notice of withdrawal must be timely received by the exchange agent at the address set forth under "-- Exchange Agent" on or prior to the expiration date. Any such notice of withdrawal must specify the name of the person who tendered the original capital securities to be withdrawn, the aggregate principal amount of original capital securities to be withdrawn, and, if certificates for such original capital securities have been tendered, the name of the registered holder of the original capital securities as set forth on such certificates if different from that of the person who tendered such original capital securities. If certificates representing original capital securities have been delivered or otherwise identified to the exchange agent, then prior to the physical release of such certificates, the tendering holder must submit the serial numbers shown on the particular certificates to be withdrawn and the signature on the notice of withdrawal must be guaranteed by an eligible institution, except in the case of original capital securities tendered for the account of an eligible institution. If original capital securities have been tendered in accordance with the procedures for book-entry transfer set forth in "-- Procedures for Tendering Original Capital Securities--Book-Entry Transfer," the notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawal of original capital securities. Withdrawals of tenders of original capital securities may not be rescinded. Original capital securities properly withdrawn will not be deemed validly tendered for purposes of the exchange offer, but may be retendered at any subsequent time on or prior to the expiration date by following any of the procedures described above under "-- Procedures for Tendering Original Capital Securities."
All questions as to the validity, form and eligibility, including time of receipt, of such withdrawal notices will be determined by us and the Trust, in our sole discretion, which determination shall be final and binding on all parties. Neither we, the Trust, any affiliates or assigns of us or the Trust, the exchange agent nor any other person shall be under any duty to give any notification of any irregularities in any notice of withdrawal or incur any liability for failure to give any such notification. Any original capital securities which have been tendered but which are withdrawn will be returned to the holder thereof promptly after withdrawal.
DISTRIBUTIONS ON EXCHANGE CAPITAL SECURITIES
Holders of exchange capital securities whose original capital securities are accepted for exchange will be entitled to receive cumulative cash distributions arising from the payment of interest on the exchange debt securities at the annual rate of 7.0% of the liquidation amount of $1,000 per exchange capital security, accumulating from March 19, 2004, payable quarterly in arrears on January 15th, April 15th, July 15th and October 15th of each year, beginning on July 15, 2004. The record dates will be the 15th calendar day immediately preceding any payment date. Because the exchange offer will be consummated after June 30, 2004, which is the record date for the July 15, 2004 payment date, distributions were paid on the original capital securities accumulated from and after March 19, 2004 through July 14, 2004, and distributions will be paid on the exchange capital securities from and after July 15, 2004. The amount of each distribution with respect to the exchange capital securities will include amounts accrued to, but excluding the date the distribution is due. Because of the foregoing procedures regarding distributions, the amount of the distributions received by holders whose original capital securities are accepted for exchange will not be affected by the exchange.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the exchange offer, or any extension of the exchange offer, we and the Trust will not be required to accept for exchange, or to exchange, any original capital securities for any exchange capital securities, and, as described below, may terminate the exchange offer (whether or not any original capital securities have theretofore been accepted for exchange) or may waive any conditions to or amend the exchange offer, if any of the following conditions have occurred or exist or have not been satisfied:
o there shall occur a change in the current interpretation by the staff of the SEC which permits the exchange capital securities issued pursuant to the exchange offer in exchange for original capital securities to be offered for resale, resold and otherwise transferred by holders, other than a broker and any such holder which is an affiliate of us or the Trust within the meaning of Rule 405 under the
Securities Act, without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such exchange capital securities are acquired in the ordinary course of such holders' business and such holders have no arrangement or understanding with any person to participate in the distribution of such exchange capital securities;
o any law, statute, rule or regulation shall have been adopted or enacted which, in the judgment of us or the Trust, would reasonably be expected to impair its ability to proceed with the exchange offer;
o a stop order shall have been issued by the SEC or any state securities authority suspending the effectiveness of the registration statement, or proceedings shall have been initiated or, to the knowledge of us or the Trust, threatened for that purpose, or any governmental approval has not been obtained, which approval we or the Trust shall, in its sole discretion, deem necessary for the consummation of the exchange offer as contemplated hereby; or
o we determine in good faith that there is a reasonable likelihood that, or a material uncertainty exists as to whether, consummation of the exchange offer would result in an adverse tax consequence to the Trust or us.
EXCHANGE AGENT
Wilmington Trust Company, as institutional trustee of the Trust, has been appointed as exchange agent for the exchange offer. Delivery of the letters of transmittal and any other required documents, questions, requests for assistance, and requests for additional copies of this prospectus or of the letter of transmittal should be directed to the exchange agent as follows:
By Hand, Overnight Delivery, Registered or Certified Mail:
Wilmington Trust Company, as Exchange Agent DC-1626 Processing Unit P.O. Box 8861 Wilmington, DE 19899-8861
Attention: Corporate Capital Markets - Dime Community Capital Trust I Exchange Offer
Confirm by Telephone: (302) 636-6470
Facsimile Transmission: (302) 636-4145
(ELIGIBLE INSTITUTIONS ONLY)
Delivery to another address other than the above address or facsimile number will not constitute a valid delivery.
FEES AND EXPENSES
We have agreed to pay the exchange agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses in connection with the exchange offering. We will also reimburse brokerage houses and other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them in forwarding copies of this prospectus and related documents to the beneficial owners of original capital securities, and in handling or tendering for their customers.
Holders who tender their original capital securities for exchange will not be obligated to pay any transfer taxes in connection therewith. If, however, exchange capital securities are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the original capital securities tendered, or if a transfer tax is imposed for any reason other than the exchange of original capital securities in connection with the exchange offer, then the amount of any such transfer taxes, whether imposed on the registered holder or any other persons, will be payable by the tendering holder.
Neither we nor the Trust will make any payment to brokers, dealers or other nominees soliciting acceptances of the exchange offer.
DESCRIPTION OF EXCHANGE CAPITAL SECURITIES
THIS SUMMARY DESCRIBES THE MATERIAL PROVISIONS OF THE EXCHANGE CAPITAL SECURITIES. IT IS NOT COMPLETE AND IS BOTH SUBJECT TO AND QUALIFIED BY THE TRUST AGREEMENT, INCLUDING THE DEFINITIONS USED IN THE TRUST AGREEMENT, AND THE TRUST INDENTURE ACT OF 1939, AS AMENDED, REFERRED TO AS THE TRUST INDENTURE ACT. WE HAVE INCORPORATED THE DEFINITIONS USED IN THE TRUST AGREEMENT IN THIS PROSPECTUS. YOU CAN RECEIVE A COMPLETE COPY OF THE FORM OF TRUST AGREEMENT BY REQUESTING A COPY FROM DIME COMMUNITY.
GENERAL
The exchange capital securities will represent preferred beneficial interests in the Trust. The exchange capital securities will rank equal to, and payments will be made on a PRO RATA basis with, the common securities, except as a holder of exchange capital securities, you will be entitled to a preference over the common securities in certain circumstances with respect to distributions and amounts payable on redemption of the exchange capital securities or liquidation of the Trust, as described under " -- Subordination of Common Securities." The trust agreement will not be qualified under the Trust Indenture Act except upon effectiveness of the exchange offer registration statement or a shelf registration statement. By its terms, however, the trust agreement will incorporate certain provisions of the Trust Indenture Act, and, upon consummation of the exchange offer or effectiveness of the shelf registration statement, the trust agreement will be subject to and governed by the Trust Indenture Act.
The exchange capital securities will be limited to $70.0 million aggregate liquidation amount at any one time outstanding. The institutional trustee will have legal title to the exchange debt securities and will hold them in trust for the benefit of you and the other holders of the exchange capital securities. Our exchange guarantee for the benefit of the holders of the exchange capital securities will be a guarantee on a subordinated basis with respect to the exchange capital securities, but will not guarantee payment of distributions or amounts payable on redemption of the exchange capital securities or liquidation of the Trust when the Trust does not have funds legally available for such payments. You should read "Description of Exchange Guarantee" for more information about our guarantee.
DISTRIBUTIONS
Distributions on the exchange capital securities will be cumulative, and will accumulate from the most recent date on which distributions have been paid. Distributions will be payable at the annual rate of 7.0% of the liquidation amount, payable quarterly in arrears on January 15th, April 15th, July 15th and October 15th of each year, beginning on July 15, 2004, to the holders of the exchange capital securities on the relevant record dates. The record dates will be the 15th calendar day immediately preceding any payment date. Because the exchange offer will be consummated after June 30, 2004, which is the record date for the July 15, 2004 payment date, distributions were paid on the original capital securities accumulated from and after March 19, 2004 through July 14, 2004, and distributions will be paid on the exchange capital securities from and after July 15, 2004. The amount of distributions to be paid on each distribution date with respect to the exchange capital securities will include amounts accrued to, but excluding the date the distribution is due. Because of the foregoing procedures regarding distributions, the amount of the distributions received by holders whose original capital securities are accepted for exchange will not be affected by the exchange. The amount of distributions payable for any distribution period will be based on a 360-day year of twelve 30-day months.
If any distribution date would otherwise fall on a day that is not a business day, the distributions payable on such date shall be paid on the next succeeding business day without any interest or other payment in respect of any such delay, and with the same force and effect as if made on such date. A business day means any day other than a Saturday or a Sunday, or a day on which banking institutions in Wilmington, Delaware or New York, New York, are authorized or required by law, executive order or regulation to close.
The Trust's revenue available for distribution to holders of the exchange capital securities will be limited to our payments to the Trust under our exchange debt securities. For more information, you should read "Description of Exchange Debt Securities -- General." If we do not make interest payments on the exchange debt securities, the institutional trustee will not have funds available to pay distributions only on the exchange capital securities and on the common securities. We will irrevocably guarantee the payment of distributions only if and to the extent that the Trust has funds legally available to pay the distributions. You should read "Description of Exchange Guarantee" for more information about the extent of our exchange guarantee.
OPTION TO DEFER INTEREST PAYMENTS
As long as no event of default exists with respect to the exchange debt securities, we have the right under the indenture to elect to defer the payment of interest, including liquidated damages, if any, on the exchange debt securities, at any time or from time to time, for no more than 20 consecutive quarterly periods, each such period an extension period, PROVIDED, THAT no extension period will end on a date other than an interest payment date, or extend beyond April 14, 2034, the stated maturity date of the exchange debt securities, any optional redemption date or the special event redemption date. If we defer interest payments, the Trust will defer quarterly distributions on the exchange capital securities during the extension period. During any extension period, distributions will continue to accumulate on the exchange capital securities and on any accumulated and unpaid distributions, at an annual rate equal to the interest rate applicable during such extension period plus any liquidated damages, compounded quarterly from the relevant distribution date. The term distributions includes any accumulated additional distributions.
Before the end of any extension period, we may extend the extension period, as long as such extension, together with previous and subsequent extensions, does not cause the extension period to exceed 20 consecutive quarterly periods, or to end on a date other than an interest payment date or extend beyond April 14, 2034 or any date of earlier redemption. At the end of any extension period, we will be required to pay all amounts then due on the related interest payment date, including all deferred interest for such extension period. Thereafter, we may elect
to begin a new extension period subject to the above requirements. No interest (except any additional amounts) shall be due and payable during an extension period until such period ends. We must give the indenture trustee notice of our election to defer interest payments or to extend an extension period at least one business day before the regular record date applicable to the date the distributions on the exchange capital securities would have been payable.
There is no limitation on the number of times that we may elect to begin an extension period. You should read "Description of Exchange Debt Securities -- Option to Extend Interest Payment Date" and "Certain U.S. Federal Income Tax Consequences-- Interest Income and Original Issue Discount."
During any extension period, we may not:
o declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of our capital stock;
o make any payment of principal of or premium, if any, or interest on or repay, repurchase or redeem any debt securities that rank equal in all respects with the exchange debt securities; or
o make any guarantee payments with respect to any guarantee of the debt securities of any of our subsidiaries if such guarantee ranks equal in all respects with the guarantee of the exchange capital securities.
Notwithstanding the foregoing, during an extension period the following actions are permitted:
o repurchases, redemptions or other acquisitions of shares of capital stock of Dime Community (1) in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors or consultants, (2) in connection with a dividend reinvestment or stockholder stock purchase plan or (3) in connection with the issuance of capital stock of Dime Community (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the occurrence of any of the events that give rise to the foregoing restrictions;
o any exchange or conversion of any class or series of our capital stock (or any capital stock of a subsidiary) for any class or series of our capital stock or of any class or series of our indebtedness;
o the purchase of fractional interests in shares of our capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged;
o any declaration of a dividend in connection with any stockholder's rights plan, or the issuance of rights, stock or other property under any stockholder's rights plan, or the redemption or repurchase of rights pursuant thereto; and
o any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equal to or junior to such stock.
We do not currently intend to exercise our right to defer payments of interest on the exchange debt securities. Our obligations under the exchange guarantee to make payments of distributions is limited to the extent that the Trust has funds legally available to pay distributions and, therefore, will not require us to make a payment under the exchange guarantee in respect of deferred interest during an extension period. You should read "Description of Exchange Guarantee" for more information about the extent of our guarantee.
REDEMPTION
Upon payment at maturity on April 14, 2034, or redemption, in whole or in part, prior to April 14, 2034, of the exchange debt securities (other than following the distribution of the exchange debt securities to you as a holder
of the Trust's exchange capital securities and us, as the holder of the Trust's common securities), the institutional trustee will apply the proceeds from such payment to redeem at the applicable redemption price an amount of exchange capital securities and common securities having an aggregate liquidation amount equal to the principal amount of the exchange debt securities included in such payment. We will give notice of any redemption between 30 to 60 days prior to the redemption date (other than a redemption resulting from the maturity of the exchange debt securities on the maturity date).
If less than all of the exchange debt securities mature or are redeemed on a redemption date, then the institutional trustee will allocate the proceeds actually received on a PRO RATA basis among the exchange capital securities and the common securities except as described under "-- Subordination of Common Securities."
We will have the right to redeem the exchange debt securities:
o in whole or in part, on or after April 15, 2009; and
o in whole but not in part, at any time, if there are certain changes in the bank regulatory, investment company or tax laws that would adversely affect the status of the Trust, the exchange capital securities or the exchange debt securities.
We may be required to obtain regulatory approval, including the approval of the OTS, before we redeem any exchange debt securities. You should read "Description of Exchange Debt Securities -- Optional Redemption" and " -- Special Event Redemption" for information on redemption of the exchange debt securities.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF EXCHANGE DEBT SECURITIES
We will have the right at any time to dissolve the Trust and, after satisfying the liabilities owed to the Trust's creditors as required by applicable law, we will have the right to distribute the exchange debt securities to the holders of the exchange capital securities and to us as holder of the common securities. Our right to dissolve the Trust is subject to our receiving:
o an opinion of counsel to the effect that if we distribute the exchange debt securities, the holders of the exchange capital securities will not experience a taxable event; and
o any required regulatory approval.
The Trust will automatically dissolve if:
o the Trust's term expires;
o certain bankruptcy events relating to us occur, or we dissolve or liquidate;
o we distribute exchange debt securities having a principal amount equal to the liquidation amount of the exchange capital securities to holders of the exchange capital securities and we, as sponsor, have exercised our right to dissolve the Trust (which direction is at our option and, except as described above, wholly within our discretion, as sponsor);
o the Trust redeems all of the exchange capital securities as described under "-- Redemption;" or
o a court of competent jurisdiction enters an order for the dissolution of the Trust.
If the Trust is dissolved for any of the above reasons, except for a redemption of all exchange capital securities, it will be liquidated by the trustee as soon as such trustee determines to be practicable by distributing to holders of the exchange capital securities, after satisfying the liabilities owed to the Trust's creditors, as provided by applicable law, exchange debt securities having a principal amount equal to the liquidation amount of the exchange capital securities, unless the institutional trustee determines that this distribution is not practicable. If the institutional trustee determines that this distribution is not practicable, the holders of the exchange capital securities will be entitled to receive an amount equal to the aggregate of the liquidation amount plus accumulated and unpaid distributions on the exchange capital securities
to the date of payment (such amount being referred to as the liquidation distribution) out of the assets of the Trust legally available for distribution to such holders, after satisfying the liabilities owed to the Trust's creditors. If the liquidation distribution can be paid only in part, the exchange capital securities will have a priority over the common securities. For more information, you should read " -- Subordination of Common Securities."
After the liquidation date is fixed for any distribution of exchange debt securities to holders of the exchange capital securities:
o the exchange capital securities will no longer be deemed to be outstanding;
o DTC, or its nominee, will receive in respect of each registered global certificate representing exchange capital securities a registered global certificate representing the exchange debt securities to be delivered upon such distribution; and
o any certificates representing exchange capital securities not held by DTC or its nominee will be deemed to represent exchange debt securities having a principal amount equal to the liquidation amount of those exchange capital securities, and bearing accrued and unpaid interest in an amount equal to the accumulated and unpaid distributions on those exchange capital securities, until such certificates are presented to us, as the issuer of the exchange debt securities or our agent for transfer or reissuance, in which case we will issue to those holders, and the indenture trustee will authenticate one or more certificates representing the exchange debt securities.
We cannot assure you of the market prices for the exchange capital securities, or the exchange debt securities that may be distributed to you in exchange for the exchange capital securities, if a dissolution and liquidation of the Trust were to occur. Accordingly, the exchange capital securities that you purchase, or the exchange debt securities that you may receive upon a dissolution and liquidation of the Trust, may trade at a discount to the price that you paid to purchase the exchange capital securities offered by this prospectus.
If we elect not to redeem the exchange debt securities prior to maturity and either elect not to or we are unable to liquidate the Trust and distribute the exchange debt securities to holders of the exchange capital securities, the exchange capital securities will remain outstanding until the repayment of the exchange debt securities at maturity on April 14, 2034.
REDEMPTION PROCEDURES
If the exchange debt securities mature or are redeemed prior to maturity, the Trust will redeem exchange capital securities at the applicable redemption price with the proceeds received from such maturity or redemption of the exchange debt securities. Any redemption of exchange capital securities will be made and the applicable redemption price will be payable on the redemption date only to the extent that the Trust has funds legally available to pay the applicable redemption price. For more information, you should read " -- Subordination of Common Securities."
If the Trust gives a notice of redemption for the exchange capital securities, then, by 10:00 a.m., New York City time, on the redemption date, to the extent funds legally are available, with respect to:
o the exchange capital securities held by DTC or its nominees, the institutional trustee will deposit, or cause the paying agent to deposit, irrevocably with DTC funds sufficient to pay the applicable redemption price. For more information, you should read " -- Form, Denomination, Book-Entry Procedures and Transfers;" and
o the exchange capital securities held in certificated form, the institutional trustee will irrevocably deposit with the paying agent funds sufficient to pay the applicable redemption price and will give the paying agent irrevocable instructions and authority to pay the applicable redemption price to
the holders upon surrender of their certificates evidencing the exchange capital securities. For more information, you should read " -- Payment and Paying Agency."
The paying agent will initially be the institutional trustee.
Notwithstanding the foregoing, if any distribution date falls on or before the redemption date, distributions will be payable to the holders of the exchange capital securities on the record date for such distribution date. If the Trust gives a notice of redemption and funds are deposited as required, then upon the date of the deposit, all rights of the holders of the exchange capital securities called for redemption will cease except the right of the holders of the exchange capital securities to receive the applicable redemption price, without interest, and the exchange capital securities called to be redeemed will cease to be outstanding.
If any redemption date for the exchange capital securities is not a business day, then the applicable redemption price will be paid on the next business day without interest or any other payment in respect of the delay and with the same force and effect as if made on such date. If payment of the applicable redemption price is improperly withheld or refused and not paid either by the Trust or by us pursuant to the exchange guarantee:
o distributions on the exchange capital securities will continue to accumulate at the coupon rate, from the redemption date originally established by the Trust to but excluding the date such applicable redemption price is actually paid; and
o the actual payment date will be the redemption date for purposes of calculating the applicable redemption price.
Notice of any redemption will be mailed between 30 and 60 days before the redemption date to each holder of exchange capital securities at its registered address.
Subject to applicable law, including, without limitation, U.S. federal securities laws, we or our subsidiaries may at any time, and from time to time, purchase outstanding exchange capital securities in the open market or by private agreement.
SUBORDINATION OF COMMON SECURITIES
Payment of distributions on, or the redemption price of, the exchange capital securities and the common securities or the liquidation distribution, as applicable, will generally be made on a PRO RATA basis. However, if an event of default exists on any distribution, redemption or liquidation date, no payment of any distributions on, applicable redemption price of, or liquidation distribution relating to, any of the common securities, and no other payment on account of the redemption, liquidation or other acquisition of the common securities, will be made unless payment in full in cash of all accumulated and unpaid distributions on all of the outstanding exchange capital securities for all distribution periods terminating on or before the distribution, redemption or liquidation date, or payment of the applicable redemption price or the liquidation distribution, as applicable, is made in full. All funds available to the institutional trustee will first be applied to the payment in full in cash of all distributions on, the applicable redemption price of, or liquidation distribution relating to, the exchange capital securities then due and payable.
In the case of any event of default under the trust agreement, we, as holder of all of the common securities, will be deemed to have waived any right to act with respect to the event of default if the effect of the event of default has been cured, waived or otherwise eliminated. Until any event of default has been cured, waived or otherwise eliminated, the institutional trustee will act solely on behalf of the holders of the exchange capital securities and not on our behalf, and only the holders of the exchange capital securities will have the right to direct the institutional trustee to act on their behalf.
EVENTS OF DEFAULT; NOTICE
An event of default under the indenture constitutes an event of default under the trust agreement. You should read "Description of Exchange Debt Securities -- Events of Default."
The trust agreement provides that within 90 days after the institutional trustee has actual knowledge of the occurrence of an event, act or condition that, with notice or lapse of time, or both, would constitute an event of default under the indenture, the institutional trustee will give notice of the default to the holders of the exchange capital securities, the administrators and to us, as sponsor, unless the default has been cured or waived. The trust agreement also provides that within ten business days after the institutional trustee has actual knowledge of an event of default the institutional trustee will give notice of the event of default to such persons, unless the event of default has been cured or waived. We, as sponsor, and the administrators are required to file annually with the institutional trustee a certificate as to whether we and the administrators have complied with the applicable conditions and covenants of the trust agreement.
If an event of default exists, the exchange capital securities will have a preference over the common securities as described under " -- Liquidation of the Trust and Distribution of Exchange Debt Securities" and " -- Subordination of Common Securities." An event of default does not entitle the holders of exchange capital securities to accelerate the mandatory redemption date of the exchange capital securities. For a description of the rights of the holders of the exchange capital securities in the case of an event of default under the indenture, you should read " -- Voting Rights; Amendment of Trust Agreement" and "Description of Exchange Debt Securities -- Enforcement of Certain Rights of Certain Holders of Exchange Capital Securities." If an event of default has occurred and is continuing and such event is attributable to our failure to pay principal of or interest or liquidated damages, if any, on the exchange debt securities when due, any holder of the exchange capital securities may institute a legal proceeding directly against us for such payment without first instituting a legal proceeding against the Trust, the institutional trustee or any other person or entity.
REMOVAL OF TRUSTEES
Unless an event of default exists we may remove the institutional trustee and the Delaware trustee at any time. If an event of default exists, the institutional trustee and the Delaware trustee may be removed only by the holders of a majority in liquidation amount of the outstanding exchange capital securities. In no event will the holders of the exchange capital securities have the right to vote to appoint, remove or replace the administrators, because these voting rights are vested exclusively in us as the holder of all of the common securities. No resignation or removal of the institutional trustee or the Delaware trustee and no appointment of a successor trustee shall be effective until the acceptance of appointment by the successor trustee in accordance with the trust agreement.
MERGER OR CONSOLIDATION OF TRUSTEES
If the institutional trustee or the Delaware trustee is merged, converted or consolidated into another entity, or such trustee is a party to a merger, conversion or consolidation which results in a new entity, or an entity succeeds to all or substantially all of the corporate trust business of the such trustee, the new entity shall be the successor of such trustee under the trust agreement, PROVIDED, THAT the entity is otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge with or into, consolidate, amalgamate or be replaced by, or convey, transfer or lease substantially all of its properties and assets to any corporation or other entity, except as described below or as otherwise described under " -- Liquidation of the Trust and Distribution of Exchange Debt Securities." The Trust may, with the consent of the administrators but without the consent of the holders of the exchange capital securities, merge with or into, consolidate, amalgamate or be replaced by or convey, transfer or lease substantially all of its properties and assets to a trust organized as such under the laws of any state; PROVIDED, THAT:
o if the Trust is not the survivor, the successor either:
o expressly assumes all of the obligations of the Trust with respect to the exchange capital securities; or
o substitutes securities for the exchange capital securities that have substantially the same terms as the exchange capital securities so that the substitute securities rank equal to the
exchange capital securities with respect to distributions and payments upon liquidation, redemption and otherwise;
o we appoint, as the holder of the exchange debt securities, a trustee of the successor possessing the same powers and duties as the institutional trustee;
o the exchange capital securities or any substitute securities are listed or quoted, or any substitute securities will be listed or quoted upon notification of issuance, on any national securities exchange or other organization on which the exchange capital securities are then listed or quoted, if any;
o if the exchange capital securities, substitute securities or exchange debt securities are rated by any nationally recognized statistical rating organization prior to such transaction, the transaction does not cause the rating on the exchange capital securities or any successor securities to be downgraded or withdrawn by the rating organization;
o the transaction does not adversely affect the rights, preferences and privileges of the holders of the exchange capital securities (including any substitute securities) in any material respect;
o the successor, if any, has a purpose substantially identical to that of the Trust;
o prior to the transaction, the Trust received an opinion from independent counsel to the Trust experienced in such matters to the effect that:
o the transaction does not adversely affect the rights, preferences and privileges of the holders of the exchange capital securities (including any substitute securities) in any material respect (other than any dilution of such holders' interests in the successor entity);
o following the transaction, neither the Trust nor the successor will be required to register as an investment company under the Investment Company Act; and
o the Trust continues to be, and any successor will be, classified as a grantor trust for U.S. federal income tax purposes;
o we guarantee the obligations of the successor under the substitute securities to the same extent provided by the indenture, the exchange guarantee, the exchange debt securities and the trust agreement.
Notwithstanding the foregoing, the Trust may not, except with the consent of holders of 100% in liquidation amount of the exchange capital securities, consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease substantially all of its properties and assets to, any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if the transaction would cause the Trust or the successor to be classified other than as a grantor trust for U.S. federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE TRUST AGREEMENT
Except as provided below and under " -- Mergers, Consolidations, Amalgamations or Replacements of the Trust" and "Description of Exchange Guarantee -- Amendments and Assignment" and as otherwise required by law and the trust agreement, the holders of the exchange capital securities will have no voting rights.
We, together with the institutional trustee, may amend the trust agreement from time to time, without the consent of the holders of the exchange capital securities:
o to cure any ambiguity, correct or supplement any provisions in the trust agreement that may be defective or inconsistent with any other provision;
o to add to the covenants, restrictions or obligations applicable to us, as sponsor;
o to modify, eliminate or add to any provisions of the trust agreement that are necessary or advisable, including, without limitation, to ensure that at all times, the Trust will be classified as a grantor trust for U.S. federal income tax purposes and will not be required to register as an investment company under the Investment Company Act; or
o to modify, eliminate or add any provisions of the trust agreement as is necessary to enable us or the Trust to conduct an exchange offer in the manner contemplated by the registration rights agreement.
Notwithstanding the foregoing, in each case noted above, the amendment may not adversely affect the powers, preferences, rights or interests of the holders of the exchange capital securities.
In addition, we, together with the trustees, may amend the trust agreement with the consent of holders representing a majority in liquidation amount of the outstanding exchange capital securities upon receipt of an opinion of counsel to the effect that the amendment or the exercise of any power granted to the trustees in accordance with the amendment will not affect the Trust's classification as an entity that is not taxable as a corporation or as being a grantor trust for U.S. federal income tax purposes or the Trust's exemption from status as an investment company under the Investment Company Act. However, unless we obtain the consent of each holder of exchange capital securities, no such amendment may (i) change the amount or timing of any distribution on the exchange capital securities; (ii) change the redemption date(s) or prices or the liquidation distribution or events; or (iii) restrict the right of a holder of exchange capital securities to sue for the enforcement of any payment on or after the specified date.
So long as the institutional trustee holds any exchange debt securities, the trustees may not:
o direct the time, method and place of exercising any trust or power conferred on the indenture trustee with respect to the exchange debt securities;
o waive certain past defaults under the indenture;
o exercise any right to rescind or annul a declaration accelerating the maturity of the principal of the exchange debt securities; or
o consent to any amendment, modification or termination of the indenture or the exchange debt securities, where such consent shall be required,
without, in each case, obtaining the prior consent of the holders of a majority in liquidation amount of all outstanding exchange capital securities. Notwithstanding the foregoing, where the indenture would require the consent of each holder of exchange debt securities affected thereby, the institutional trustee may not give consent without the prior approval of each holder of the exchange capital securities.
The trustees will not revoke any action previously authorized or approved by a vote of the holders of the exchange capital securities, except by subsequent vote of such holders. The institutional trustee shall notify each holder of exchange capital securities of any notice of default it receives with respect to the exchange debt securities. In addition to obtaining the approvals of the holders of the exchange capital securities, prior to taking any of the foregoing actions, the trustees shall obtain an opinion of counsel experienced in such matters to the effect that the Trust will continue to be classified as a grantor trust for U.S. federal income tax purposes.
Any required approval of holders of exchange capital securities may be given at a meeting of the holders convened for the purpose of approving the matter or pursuant to written consent. The administrators will cause a notice of any meeting at which holders of exchange capital securities are entitled to vote, or of any matter upon which action by written consent of such holders has been taken, to be given to each holder of record of exchange capital securities in accordance with the trust agreement.
Notwithstanding that holders of the exchange capital securities are entitled to vote or consent under any of the circumstances described above, any of the exchange capital securities that are owned by us, the trustees or any of our or any trustee's affiliates, shall, for purposes of such vote or consent, be treated as if they were not outstanding.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFERS
The exchange capital securities initially will be represented by one or more exchange capital securities in registered, global form (collectively, the global capital securities). The global capital securities will be deposited upon issuance with the institutional trustee as custodian for DTC, in Wilmington, Delaware, and registered in the name of DTC or its nominee, in each case for credit to an account of a direct or indirect participant in DTC as described in this prospectus.
In the event that exchange capital securities are issued in certificated form, the exchange capital securities will be in blocks having a liquidation amount of not less than $100,000 (100 exchange capital securities) and may be transferred or exchanged only in such blocks in the manner described in this prospectus.
Except as set forth in this prospectus, the global capital securities may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee and only in amounts that would not cause a holder to own less than 100 exchange capital securities. Beneficial interests in the global capital securities may not be exchanged for exchange capital securities in certificated form except in the limited circumstances described in this prospectus. You should read "-- Exchange of Book-Entry Capital Securities for Certificated Capital Securities."
DEPOSITARY PROCEDURES
DTC has advised the Trust and us that it is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the Uniform Commercial Code and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities for its participating organizations referred to as, participants, and to facilitate the clearance and settlement of transactions in those securities between participants through electronic computerized book-entry changes in accounts of its participants, thereby eliminating the need for physical movement of certificates. Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Indirect access to DTC's system is also available to banks, securities brokers, dealers, trust companies and clearing corporations that clear through or maintain a custodial relationship with a participant, either directly or indirectly referred to as, indirect participants. Persons who are not participants may beneficially own securities held by or on behalf of DTC only through participants or indirect participants. The ownership interest and transfer of ownership interest of each actual purchaser of each security held by or on behalf of DTC are recorded on the records of participants and indirect participants.
DTC also has advised the Trust and us that, pursuant to procedures established by it, (1) upon deposit of the global capital securities, DTC will credit the accounts of participants designated by the initial purchaser with portions of the liquidation amount of the global capital securities and (2) ownership of interests in the global capital securities will be shown on, and the transfer of ownership of the global capital securities will be effected only through, records maintained by DTC (with respect to participants) or by participants and indirect participants (with respect to other owners of beneficial interests in the global capital securities).
You may hold your interests in the global capital security directly through DTC if you are a participant, or indirectly through organizations that are participants. All interests in a global capital security will be subject to the procedures and requirements of DTC. The laws of some states require that certain persons take physical delivery in certificated form of securities that they own. Consequently, the ability to transfer beneficial interests in a global capital security to those persons will be limited to that extent. Because DTC can act only on behalf of participants, which in turn act on behalf of indirect participants and certain banks, the ability of a person having beneficial interests in a global capital security to pledge its interests to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of its interests, may be affected by the lack of a physical certificate evidencing its interests. For certain other restrictions on the transferability of the exchange capital securities, you
should read " -- Exchange of Book-Entry Capital Securities for Certificated Capital Securities," " -- Exchange of Certificated Capital Securities for Book-Entry Capital Securities."
Except as described below, owners of interests in the global capital securities will not have exchange capital securities registered in their name, will not receive physical delivery of exchange capital securities in certificated form and will not be considered the registered owners or holders thereof under the trust agreement for any purpose.
Payments on the global capital securities registered in the name of DTC, or its nominee, will be payable in immediately available funds by the institutional trustee to DTC or its nominee in its capacity as the registered holder under the trust agreement. Under the terms of the trust agreement, the institutional trustee will treat the persons in whose names the exchange capital securities, including the global capital securities, are registered as the owners thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. Neither the institutional trustee nor any agent thereof has or will have any responsibility or liability for:
o any aspect of DTC's records or any participant's or indirect participant's records relating to, or payments made on account of, beneficial ownership interests in the global capital securities, or for maintaining, supervising or reviewing any of DTC's records or any participant's or indirect participant's records relating to the beneficial ownership interests in the global capital securities; or
o any other matter relating to the actions and practices of DTC or any of its participants or indirect participants.
DTC has advised the Trust and us that its current practice, upon receipt of any payment on the exchange capital securities, is to credit the accounts of the relevant participants with the payment on the payment date, in amounts proportionate to their respective holdings in liquidation amount of the exchange capital securities as shown on the records of DTC. Payments by participants and indirect participants to the beneficial owners of exchange capital securities will be governed by standing instructions and customary practices and will be the responsibility of participants or indirect participants and will not be the responsibility of DTC, the institutional trustee, the Trust or us. None of the Trust, Dime Community or the institutional trustee will be liable for any delay by DTC or any of its participants or indirect participants in identifying the beneficial owners of the exchange capital securities, and the Trust, Dime Community and the institutional trustee may conclusively rely on, and will be protected in relying on, instructions from DTC or its nominee for all purposes.
If applicable, redemption notices shall be sent to DTC or its nominee. If less than all of the global capital securities are to be redeemed, DTC's current practice is to determine by lot the amount of the interest of each participant that will be redeemed.
Any secondary market trading activity in interests in the global capital securities will settle in immediately available funds, subject in all cases to the rules and procedures of DTC and its participants. Transfers between participants in DTC will be effected in accordance with DTC's procedures, and will settle in same-day funds.
DTC has advised the Trust and us that it will take any action permitted to be taken by a holder of exchange capital securities (including, without limitation, presenting the exchange capital securities for exchange as described below) only at the direction of one or more participants who have an interest in DTC's global capital securities in respect of the portion of the liquidation amount of the exchange capital securities as to which the participant or participants has or have given direction. However, if an event of default exists under the trust agreement, DTC reserves the right to exchange the global capital securities for legended exchange capital securities in certificated form and to distribute the certificated exchange capital securities to its participants.
We believe that the information in this section concerning DTC and its book-entry system has been obtained from reliable sources, but we do not take responsibility for the accuracy of this information.
Although DTC has agreed to the procedures described in this section to facilitate transfers of interests in the global capital securities among participants in DTC, DTC is not obligated to perform or to continue to perform these procedures, and these procedures may be discontinued at any time by giving reasonable notice. None of the Trust,
Dime Community or the institutional trustee will have any responsibility or liability for any aspect of the performance by DTC or its participants or indirect participants of any of their respective obligations under the rules and procedures governing their operations or for maintaining, supervising or reviewing any records relating to the global capital securities that are maintained by DTC or any of its participants or indirect participants.
EXCHANGE OF BOOK-ENTRY ORIGINAL CAPITAL SECURITIES FOR CERTIFICATED EXCHANGE CAPITAL SECURITIES
A global original capital security can be exchanged for exchange capital securities in registered certificated form if:
o DTC notifies the Trust that it is unwilling or unable to continue as depositary for the global capital security and the Trust fails to appoint a successor depositary within 90 days of receipt of DTC's notice, or has ceased to be a clearing agency registered under the Exchange Act and the Trust fails to appoint a successor depositary within 90 days of becoming aware of this condition;
o at Dime Community's request, DTC notifies holders of the exchange capital securities that they may utilize DTC's procedures to cause the exchange capital securities to be issued in certificated form, and such holders request such issuance; or
o an event of default, or any event which after notice or lapse of time or both would be an event of default, exists under the trust agreement.
In addition, beneficial interests in a global capital security may be exchanged by or on behalf of DTC for certificated exchange capital securities upon request by DTC, but only upon at least 20 days' prior written notice given to the institutional trustee in accordance with DTC's customary procedures. In all cases, certificated exchange capital securities delivered in exchange for any global original capital security will be registered in the names and issued in any approved denominations requested by or on behalf of DTC (in accordance with its customary procedures) unless the administrators determine otherwise in compliance with applicable law.
PAYMENT AND PAYING AGENCY
The Trust will make payments on the exchange capital securities that are held in global form in immediately available funds to DTC, or its nominee, which will credit the relevant accounts at DTC on the applicable payment dates. The Trust will make payments on the exchange capital securities, other than payments on a redemption date, that are not held by DTC by mailing a check to the address of the holders on the record date, which will be the date that is 15 calendar days prior to the relevant distribution date (except in limited circumstances), whether or not the record date falls on a business day, appearing on the register or by wire transfer to an account maintained by the holder if it has delivered proper transfer instructions prior to the record date, while payments on a redemption date will be made in immediately available funds upon surrender of the exchange capital securities. The paying agent will initially be the institutional trustee and any co-paying agent chosen by the institutional trustee and acceptable to the administrators and us. The paying agent will be permitted to resign as paying agent upon 30 days' notice to the institutional trustee, the administrators and us. In the event that the institutional trustee is no longer the paying agent, the administrators will appoint a successor (which must be a bank or trust company acceptable to the administrators and us) to act as paying agent.
RESTRICTIONS ON TRANSFER
The exchange capital securities will be issued, and may be transferred, only in blocks having a liquidation amount of not less than $100,000 (100 exchange capital securities) and multiples of $1,000 in excess thereof. Any attempted sale, transfer or other disposition of exchange capital securities in a block having a liquidation amount of less than $100,000 will be deemed to be void and of no legal effect whatsoever. Any such purported transferee will be deemed not to be the holder of such exchange capital securities for any purpose, including, but not limited to, the receipt of distributions on such exchange capital securities, and such purported transferee will be deemed to have no interest whatsoever in such exchange capital securities.
REGISTRAR AND TRANSFER AGENT
The institutional trustee will act as registrar and transfer agent for the exchange capital securities.
The Trust will register transfers of the exchange capital securities without charge, except for any tax or other governmental charges that may be imposed in connection with any transfer or exchange. The Trust will not be required to have the transfer of the exchange capital securities registered after they have been called for redemption.
INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
Unless an event of default exists, the institutional trustee will undertake to perform only the duties specifically set forth in the trust agreement. Upon the occurrence and continuance of an event of default, the institutional trustee must exercise the same degree of care and skill as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the institutional trustee is not obligated to exercise any of the powers vested in it by the trust agreement at the request of any holder of exchange capital securities, unless it is offered reasonable indemnity against the costs, expenses and liabilities that it might incur. If no event of default exists and the institutional trustee is required to decide between alternative causes of action, construe ambiguous provisions in the trust agreement or is unsure of the application of any provision of the trust agreement, and the matter is not one on which holders of the exchange capital securities are entitled under the trust agreement to vote, then the institutional trustee shall take such action as directed by us and, if not directed, shall take such action as it deems advisable and in the best interests of the holders of the exchange capital securities and will have no liability, except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
We, the administrators and the institutional trustee are authorized and directed to conduct the affairs of and to operate the Trust in a manner not inconsistent with the trust agreement or applicable law so that:
o the Trust will not be deemed to be an investment company required to be registered under the Investment Company Act;
o the Trust will be classified as a grantor trust for U.S. federal income tax purposes; and
o the exchange debt securities will be treated as our indebtedness for U.S. federal income tax purposes.
We, together with the administrators and the institutional trustee, are authorized to take any action, not inconsistent with applicable law or the trust agreement, that we, the administrators and the institutional trustee determine in our discretion is necessary or desirable for such purposes even if such action adversely affects the interests of the holders of the exchange capital securities.
The trust agreement provides that holders of the exchange capital securities have no preemptive or similar rights to subscribe for any additional exchange capital securities and the issuance of exchange capital securities is not subject to preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge any of its assets.
GOVERNING LAW
The trust agreement and exchange capital securities will be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles.
DESCRIPTION OF EXCHANGE DEBT SECURITIES
THIS SUMMARY DESCRIBES THE MATERIAL PROVISIONS OF THE EXCHANGE DEBT SECURITIES. IT IS NOT COMPLETE AND IS SUBJECT TO, AND QUALIFIED IN ITS ENTIRETY BY, THE INDENTURE. THE INDENTURE WILL NOT BE QUALIFIED UNDER THE TRUST INDENTURE ACT, EXCEPT UPON EFFECTIVENESS OF THE EXCHANGE OFFER REGISTRATION STATEMENT OR THE SHELF REGISTRATION STATEMENT. HOWEVER, BY ITS TERMS, THE INDENTURE WILL INCORPORATE BY REFERENCE CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT AND UPON CONSUMMATION OF THE EXCHANGE OFFER OR EFFECTIVENESS OF THE SHELF REGISTRATION STATEMENT, THE INDENTURE WILL BE GOVERNED BY AND SUBJECT TO THE TRUST INDENTURE ACT. WE HAVE INCORPORATED THE DEFINITIONS USED IN THE INDENTURE IN THIS PROSPECTUS. YOU CAN OBTAIN A COPY OF THE INDENTURE BY REQUESTING IT FROM DIME COMMUNITY. WILMINGTON TRUST COMPANY WILL ACT AS INDENTURE TRUSTEE UNDER THE INDENTURE.
GENERAL
The Trust invested the proceeds from the sale of the original capital securities and the common securities in the original junior subordinated debt securities issued by us. The original junior subordinated debt securities bear interest at the annual rate of 7.0% of the principal amount of the original junior subordinated debt securities, payable quarterly in arrears on interest payment dates of January 15th, April 15th, July 15th and October 15th of each year to the person in whose name each original junior subordinated debt security is registered at the close of business on the relevant record date. The exchange debt securities will have terms identical in all material respects to the original junior subordinated debt securities, except that the exchange debt securities will not contain terms with respect to transfer restrictions under the Securities Act and will not provide for any liquidated damages. The first interest payment date for the exchange debt securities will be October 15, 2004. The period beginning on and including the date the exchange debt securities are first issued and ending on but excluding October 15, 2004 and each period beginning on and including an interest payment date and ending on but excluding the next interest payment date is an interest period.
We anticipate that until the liquidation, if any, of the Trust, each exchange debt security will be held by the institutional trustee in trust for the benefit of the holders of the exchange capital securities. The amount of interest payable for any interest period will be computed on the basis of a 360-day year consisting of twelve 30-day months. In the event that any interest payment date, the stated maturity date or any earlier date of redemption would otherwise fall on a day that is not a business day, then the payment payable on such date will be made on the next succeeding day that is a business day, without any interest or other payment in respect of any such delay and with the same force and effect as if made on such date.
Accrued interest that is not paid on the applicable interest payment date will bear additional interest (to the extent permitted by law) at the coupon rate, compounded quarterly from the relevant interest payment date. The term "interest," as used in this prospectus includes quarterly interest payments and interest on quarterly interest payments not paid on the applicable interest payment date.
The exchange debt securities will be issued as a series of exchange deferrable interest debt securities under the indenture.
The exchange debt securities will mature on April 14, 2034.
The exchange debt securities will rank equally to all of our other subordinated debt which has been or may be issued to other trusts established by us, in each case similar to the Trust, and will be unsecured and rank subordinate and junior to all of our senior debt, as set forth in the indenture. At March 31, 2004, we had $25 million of senior debt outstanding, consisting entirely of our subordinated notes payable. You should read "-- Subordination."
Because we are a holding company, our right to participate in any distribution of assets of any subsidiary upon such subsidiary's liquidation or reorganization or otherwise (and thus the ability of holders of the exchange capital securities to benefit indirectly from such distribution) is subject to the prior claims of preferred equity holders and creditors of that subsidiary (including depositors, in the case of Dime of Williamsburgh), except to the extent that we may be recognized as a creditor of that subsidiary. At March 31, 2004, our subsidiaries had total liabilities, including deposits, and preferred equity of $3.10 billion. Accordingly, the exchange debt securities will be effectively subordinated to all existing and future liabilities and preferred equity of our subsidiaries (including Dime of
Williamsburgh's deposit liabilities) and all liabilities and preferred equity of any of our future subsidiaries. The indenture does not limit the incurrence or issuance of other secured or unsecured debt by us or any subsidiaries, including senior debt. You should read " -- Subordination."
FORM, REGISTRATION AND TRANSFER
If the exchange debt securities are distributed to the holders of the exchange capital securities, the exchange debt securities may be represented by one or more global certificates registered in the name of Cede & Co., as the nominee of DTC. The depositary arrangements for such exchange debt securities are expected to be substantially similar to those in effect for the exchange capital securities. For a description of DTC and the terms of the depositary arrangements relating to payments, transfers, voting rights, redemptions and other, notices and other matters, you should read "Description of Exchange Capital Securities -- Form, Denomination, Book-Entry Procedures and Transfers."
PAYMENT AND PAYING AGENTS
Payment of principal of (and premium, if any), and interest on, the exchange debt securities will be made at the office of the indenture trustee in Wilmington, Delaware or at the place of such paying agent or paying agents as we may designate from time to time, except that, at our option, payment of any interest on an interest payment date other than maturity or earlier redemption may be made, except in the case of exchange debt securities in global form:
o by check mailed to the address of the person or entity entitled to the interest payment as such address shall appear in the register for the exchange debt securities; or
o by wire transfer to an account maintained by the person or entity entitled to the interest payment as specified in the register, PROVIDED, THAT proper transfer instructions have been received by the relevant record date.
Payment of any interest on any exchange debt security on any interest payment date will be made to the person or entity in whose name the exchange debt security is registered at the close of business on the record date for the interest payment date, which will be the date that is 15 calendar days prior to the relevant interest payment date whether or not the record date falls on a business day, except in the case of defaulted interest. We may at any time designate additional paying agents or rescind the designation of any paying agent; however we will always be required to maintain a paying agent in each place of payment for the exchange debt securities.
Payments in respect of the exchange debt securities in global form, and upon surrender at maturity or earlier redemption regardless of whether in global or certificated form, will be payable in immediately available funds.
Any moneys deposited with the indenture trustee or any paying agent, or then held by us, in trust for the payment of the principal of or interest on any exchange debt security and remaining unclaimed for two years after such principal or interest has become due and payable shall, at our request, be repaid to us and the holder of the exchange debt security shall thereafter look, as a general unsecured creditor, only to us for payment.
OPTION TO EXTEND INTEREST PAYMENT DATE
As long as no event of default exists, we have the right under the indenture to elect to defer payment of interest, including liquidated damages, if any, on the exchange debt securities, at any time or from time to time, for 20 consecutive quarterly periods, each such period an extension period PROVIDED, THAT no extension period will end on a date other than an interest payment date, or extend beyond April 14, 2034, the stated maturity date of the exchange debt securities or any date of earlier redemption. If we defer interest payments, the Trust will defer quarterly distributions on the exchange capital securities during the extension period. During any extension period, distributions will continue to accrue on the exchange capital securities and on any accrued and unpaid distributions, compounded quarterly from the relevant distribution date at the date such deferred interest would have been payable were it not for the extension period. The term distributions includes any accumulated additional distributions.
Before the end of any extension period, we may extend such period, as long as such extension, together with previous and subsequent extensions, does not cause the extension period to exceed 20 consecutive quarterly periods, or, to end on a date other than an interest payment date or extend beyond April 14, 2034 or any date of earlier redemption. At the end of any extension period we will be required to pay all amounts then due on any interest payment date, in which event we may elect to begin a new extension period, subject to the above requirements. No interest (except any additional amounts that may be due and payable) shall be due and payable during a extension period until such period ends. We must give the indenture trustee notice of our election to defer interest payments, or to extend an extension period at least one business day before the regular record date applicable to the date the distributions on the exchange capital securities would have been payable.
There is no limitation on the number of times that we may elect to begin an extension period. You should read "Description of Exchange Debt Securities -- Option to Extend Interest Payment Date" and "Certain Federal Income Tax Consequences -- Interest Income and Original Issue Discount."
During any extension period, we may not:
o declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to any of our capital stock;
o make any payment of principal of or premium, if any, or interest on or repay, repurchase or redeem any debt securities that rank equal in all respects with the exchange debt securities; or
o make any guarantee payments with respect to any guarantee of the debt securities or preferred interests of any of our subsidiaries if such guarantee ranks equal to the guarantee of the exchange capital securities.
Notwithstanding the foregoing, during an extension period we may make the following payments:
o repurchases, redemptions or other acquisitions of shares of capital stock of Dime Community (1) in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors or consultants, (2) in connection with a dividend reinvestment or stockholder stock purchase plan or (3) in connection with the issuance of capital stock of Dime Community (or securities convertible into or exercisable for such capital stock), as consideration in an acquisition transaction entered into prior to the occurrence of any of the events that give rise to the foregoing restrictions;
o as a result of any exchange or conversion of any class or series of our capital stock (or any capital stock of a subsidiary) for any class or series of our capital stock or of any class or series of our indebtedness for any class or series of our capital stock;
o the purchase of fractional interests in shares of our capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged;
o any declaration of a dividend in connection with any stockholder's rights plan, or the issuance of rights, stock or other property under any stockholder's rights plan, or the redemption or repurchase of rights pursuant thereto; and
o any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equal with or junior to such stock.
We do not currently intend to exercise our right to defer payments of interest on the exchange debt securities. Our obligations under the exchange guarantee to make payments of distributions is limited to the extent that the Trust has funds legally available to pay distributions. You should read "Description of Exchange Guarantee" for more information about the extent of our guarantee.
OPTIONAL REDEMPTION
The exchange debt securities will be redeemable, in whole or in part, at our option on or after April 15, 2009, subject to our receipt of any required regulatory approval, at an optional redemption price equal to 100% of the principal amount of the debt securities to be redeemed, plus any unpaid interest and liquidated damages, if any, accrued thereon to but excluding the date fixed for redemption. If we exercise our option to redeem the exchange debt securities under these circumstances, then the proceeds of that redemption must be applied to redeem the exchange capital securities at an optional redemption price. You should read "Description of Exchange Capital Securities -- Redemption."
SPECIAL EVENT REDEMPTION
If there are changes in the bank regulatory, investment company or tax
laws that adversely affect the status of the Trust, the exchange capital
securities or the exchange debt securities, we may, at our option and at any
time, subject to our receipt of any required regulatory approval, redeem the
exchange debt securities, in whole but not in part, at any time within 90 days
of the relevant change, at the special event redemption price. If we exercise
our option to redeem the exchange debt securities under these circumstances,
then the proceeds of that redemption must be applied to redeem the exchange
capital securities at a special event redemption price.
You should read "Description of Exchange Capital Securities-- Redemption."
The special event redemption price will be equal to an amount in cash equal to the percentage of the principal amount of the exchange debt security that is specified below for the special event redemption date plus any unpaid interest and liquidated damages, if any, accrued thereon to but excluding the special event redemption date:
Special event redemption price will be 103.5% to, but excluding April 15, 2005 and thereafter will be as follows for the Percentage of 12-Month Period Beginning Principal Amount ------------------------- ---------------- April 15, 2005 102.8% April 15, 2006 102.1% April 15, 2007 101.4% April 15, 2008 100.7% April 15, 2009 and thereafter 100% |
A change in the bank regulatory law means the receipt of an opinion of counsel experienced in such matters to the effect that, as a result of:
o any amendment to, or change in, any laws or regulations of the United States or any political subdivision thereof or any rules, guidelines or policies of an applicable regulatory agency or authority; or
o any official administrative pronouncement or action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement, action or decision is announced on or after the date the exchange capital securities are first issued, there is more than insubstantial risk that the exchange capital securities do not constitute, or within 90 days of the opinion will not constitute, Tier 1 capital (or its then equivalent if we were subject to such capital requirement) applied as if we were a bank holding company.
A change in the investment company law means the receipt by us and the Trust of an opinion of counsel experienced in such matters to the effect that, as a result of:
o any amendment to, or change in, any laws, rules or regulations of the United States or any political subdivision thereof; or
o any official administrative pronouncement or action or judicial decision interpreting or applying such laws, rules or regulations,
which amendment or change is effective or which pronouncement, action or decision is announced on or after the date the exchange capital securities are first issued, there is more than an insubstantial risk that the Trust is, or within 90 days of the date of the opinion will be, considered an investment company that is required to be registered under the Investment Company Act.
A change in tax law means the receipt by us and the Trust of an opinion of counsel experienced in such matters to the effect that, as a result of:
o any amendment to, clarification of or change (including any announced prospective change) in, any laws or regulations of the United States or any political subdivision or taxing authority thereof or therein; or
o any official administrative pronouncement (including any private letter ruling, technical advice memorandum, regulatory procedure, notice or announcement, referred to as an administrative action) or judicial decision interpreting or applying such laws or regulations regardless of whether such administrative action or judicial decision is issued to or in connection with a proceeding involving us or the Trust and whether or not subject to review or appeal,
which amendment, clarification, change, administrative action or judicial decision is enacted, promulgated or announced in each case on or after the date the exchange capital securities are first issued, there is more than an insubstantial risk that:
o the Trust is, or will be within 90 days of the date of such opinion, subject to U.S. federal income tax with respect to any income received or accrued on the exchange debt securities;
o interest payable by us on the exchange debt securities is not, or within 90 days of the date of such opinion will not be, deductible by us, in whole or in part, for U.S. federal income tax purposes; or
o the Trust is, or will be within 90 days of the date of such opinion, subject to or otherwise required to pay, or required to withhold from distributions to holders of exchange capital securities, more than a DE MINIMIS amount of other taxes (including withholding taxes), duties, assessments or other governmental charges.
If the Trust is required to pay (or is required to withhold from distributions to holders of exchange capital securities) any additional taxes (including withholding taxes), duties, assessments or other governmental charges as a result of a change in the tax law, we will pay as additional amounts on the exchange debt securities any amounts as may be necessary in order that the net amounts received and retained by the holders of exchange capital securities after payment of all taxes (including withholding taxes), duties, assessments or other governmental charges, will be equal to the amounts that such holders would have received and retained had no such taxes (including withholding taxes), duties, assessments or other governmental charges been imposed.
We will mail or cause the indenture trustee to mail any notice of redemption at least 30 but not more than 60 days before the redemption date to each holder of exchange debt securities to be redeemed at its registered address. Unless we default in payment of the redemption price, on the redemption date interest shall cease to accrue on the exchange debt securities called for redemption.
CERTAIN COVENANTS OF DIME COMMUNITY
If at any time:
o we have actual knowledge that there is any event that is, or with the giving of notice or the lapse of time, or both, would be, an event of default and that we have not cured;
o we are in default with respect to our payment of any obligations under the exchange guarantee; or
o we have given notice of our election to exercise our right to defer interest payments on the exchange debt securities as provided in the indenture and the extension period, or any extension of the extension period, is continuing,
we will not:
o declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of our capital stock;
o make any payment of principal or premium if any, or interest on, or repay, repurchase or redeem any of our debt securities that rank equal to the exchange debt securities; or
o make any guarantee payments with respect to any of our guarantees of the debt securities of any of our subsidiaries if such guarantee ranks equal to the guarantee of the exchange capital securities, other than:
o repurchases, redemptions or other acquisitions of shares of capital stock of Dime Community (1) in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors or consultants, (2) in connection with a dividend reinvestment or stockholder stock purchase plan or (3) in connection with the issuance of capital stock of Dime Community (or securities convertible into or exercisable for such capital stock), as consideration in an acquisition transaction entered into prior to the occurrence of any of the events that give rise to the foregoing restrictions;
o as a result of any exchange or conversion of any class or series of our capital stock (or any capital stock of a subsidiary) for any class or series of our capital stock or of any class or series of our indebtedness for any class or series of our capital stock;
o the purchase of fractional interests in shares of our capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged;
o any declaration of a dividend in connection with any stockholder's rights plan, or the issuance of rights, stock or other property under any stockholder's rights plan, or the redemption or repurchase of rights pursuant thereto; and
o any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equal with or junior to such stock.
So long as the exchange capital securities and common securities remain outstanding, we also will:
o directly or indirectly maintain 100% direct or indirect ownership of the common securities; PROVIDED, HOWEVER, that any of our permitted successors under the indenture may succeed to our ownership of the common securities;
o use commercially reasonable efforts to cause the Trust to remain a statutory trust, except in connection with the distribution of exchange debt securities to the holders of exchange capital
securities in liquidation of the Trust, the redemption of all of the exchange capital securities, or certain mergers, consolidations or amalgamations, each as permitted by the trust agreement;
o use commercially reasonable efforts to cause the Trust to otherwise continue to be classified as a grantor trust for U.S. federal income tax purposes; and
o use commercially reasonable efforts to cause each holder of exchange capital securities to be treated as owning an undivided beneficial interest in the exchange debt securities.
MODIFICATION OF INDENTURE
From time to time, we, together with the indenture trustee, may, without the consent of the holders of exchange debt securities, enter into an indenture or indentures supplemental to the indenture for specified purposes, including, among other things, (i) curing ambiguities, defects or inconsistencies, (ii) enabling us and the Trust to conduct an exchange offer as contemplated by the registration rights agreement, PROVIDED, THAT any such action does not adversely affect the interest of the holders of exchange debt securities or the holders of the exchange capital securities or the common securities and (iii) qualifying, or maintaining the qualification of, the indenture under the Trust Indenture Act.
The indenture permits us and the indenture trustee, with the consent of the holders of a majority in aggregate principal amount of exchange debt securities outstanding at the time, to enter into an indenture or indentures supplemental to the indenture or any supplemental indenture in a manner affecting the rights of the holders of the exchange debt securities; PROVIDED, THAT no supplemental indenture may, without the consent of the holders of each outstanding exchange debt security affected:
o change the stated maturity date of or the principal amount of, or any premium on, the exchange debt securities;
o reduce the rate or extend the time of payment of interest, except pursuant to our right under the indenture to defer the payment of interest. You should also read "-- Option to Extend Interest Payment Date;"
o reduce or increase the aggregate principal amount of exchange debt securities then outstanding or change any of the redemption provisions;
o make the principal of or interest on the exchange debt securities payable in any coin or currency other than U.S. dollars;
o impair or affect the right of any holder of exchange debt securities to institute suit for the payment thereof; or
o reduce the percentage of the principal amount of the exchange debt securities, the holders of which are required to consent to any such modification.
EVENTS OF DEFAULT
An "event of default" is:
o our failure for 30 days to pay any interest or liquidated damages, if any, on the exchange debt securities or any other similar debt securities when due (subject to the extension of any interest payment date in the case of a extension period with respect to the exchange debt securities);
o our failure to pay any principal or premium, if any on the exchange debt securities or any other similar debt securities when due, whether at maturity, upon redemption, by accelerating the maturity or otherwise;
o our failure to observe or perform, in any material respect, certain covenants contained in the indenture for 90 days after written notice to us from the indenture trustee or to us and the indenture trustee from the holders of not less than 25% in aggregate outstanding principal amount of exchange debt securities;
o the Trust is dissolved, unless as contemplated by the trust agreement; or
o certain events related to our bankruptcy, insolvency or reorganization.
The holders of a majority in aggregate outstanding principal amount of the exchange debt securities have, subject to certain exceptions, the right to direct the time, method and place of conducting any proceeding for any remedy available to the indenture trustee. The indenture trustee or the holders of not less than 25% in aggregate outstanding principal amount of the exchange debt securities may declare the principal and any premium and interest accrued and unpaid thereon to be due and payable immediately upon an event of default; PROVIDED, HOWEVER, that our bankruptcy, insolvency or reorganization will result in an automatic acceleration of the maturity of the exchange debt securities and all accrued and unpaid interest thereon. The holders of a majority in aggregate outstanding principal amount of the exchange debt securities and any premium and interest accrued, but unpaid, thereon may annul this declaration and waive the default if the default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the indenture trustee.
Prior to any acceleration, the holders of a majority in aggregate outstanding principal amount of the exchange debt securities may, on behalf of the holders of all the exchange debt securities, waive (or modify any previously granted waiver of) any past default, except a default in the payment of principal or premium, if any, or interest or liquidated damages, if any, (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal due (and premium, if any) otherwise than by acceleration has been deposited with the indenture trustee), a default in respect of a covenant or provision which under the indenture cannot be modified or amended without the consent of the holder of each outstanding exchange debt security or a default in respect of the covenants regarding limitations on dividends, PROVIDED, THAT if the exchange debt securities are held by the Trust or a trustee of the Trust, such waiver or modification to such waiver will not be effective until the holders of a majority in liquidation amount of the outstanding exchange capital securities have consented to such waiver or modification to such waiver.
The indenture requires that we file with the indenture trustee a certificate annually as to the absence of defaults specified under the indenture.
The indenture provides that the indenture trustee may withhold notice of an event of default other than a default in the payment of principal, premium, if any, interest or liquidated damages, if any, from the holders of the exchange debt securities if the indenture trustee considers it in the interest of the holders to do so.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF EXCHANGE CAPITAL SECURITIES
If an event of default exists that is attributable to our failure to pay the principal of and premium, if any, or interest or liquidated damages, if any, on the exchange debt securities on the due date, a holder of exchange capital securities may institute a direct action against us. You should read "Description of Exchange Capital Securities -- Events of Default; Notice." We may not amend the indenture to remove this right to bring a direct action without the prior written consent of the holders of all of the exchange capital securities. Notwithstanding any payments that we make to a holder of exchange capital securities in connection with a direct action, we shall remain obligated to pay the principal of and premium, if any, and interest and liquidated damages, if any, on the exchange debt securities, and we shall be subrogated to the rights of the holder of the exchange capital securities with respect to payments on the exchange capital securities to the extent that we make any payments to a holder in any direct action.
The holders of the exchange capital securities will not be able to exercise directly any remedies, other than those described in the above paragraph, available to the holders of the exchange debt securities, unless an event of default exists under the trust agreement. You should read "Description of Exchange Capital Securities -- Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The indenture provides that we will not consolidate with or merge into any other person or convey, transfer or lease substantially all of our properties to any person, and no person shall consolidate with or merge into us unless:
o the successor is organized under the laws of the United States or any state or the District of Columbia, and the successor expressly assumes our obligations under the indenture and the exchange debt securities;
o immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time, or both, would become an event of default, exists; and
o certain other conditions as prescribed in the indenture are met.
The general provisions of the indenture do not afford holders of the exchange debt securities protection in the event of a highly leveraged or other transaction that we may become involved in that may adversely affect holders of the exchange debt securities.
SATISFACTION AND DISCHARGE
The indenture provides that when, among other things,
o all exchange debt securities are delivered to the indenture trustee for cancellation;
o all exchange debt securities not previously delivered to the indenture trustee for cancellation have become due and payable or will become due and payable at maturity or called for redemption within one year; and
o we deposit or cause to be deposited with the indenture trustee funds, in trust, for the purpose and in an amount sufficient to pay and discharge the entire indebtedness on the exchange debt securities not previously delivered to the indenture trustee for cancellation, for the principal (and premium, if any) and interest (including compounded interest and additional amounts if any) to and including the date of redemption or maturity, as the case may be,
then the indenture will cease to be of further effect (except as to our obligations to pay all other sums due pursuant to the indenture and to provide the officers' certificates and opinions of counsel), and we will be deemed to have satisfied and discharged the indenture.
SUBORDINATION
To the extent provided in the indenture, we have promised that any of our exchange debt securities issued under the indenture and any supplemental indenture will be ranked junior to all of our senior debt. Upon any payment or distribution of our assets to creditors upon our liquidation, dissolution, winding up, reorganization, assignment for the benefit of our creditors, marshaling of our assets or any bankruptcy, insolvency, debt restructuring or similar proceedings in connection with any insolvency or bankruptcy proceeding of us, the senior debt must be paid in full before the holders of the exchange debt securities will be entitled to receive or retain any payment in respect thereof.
No payments on account of principal or interest, if any, in respect of the exchange debt securities may be made if there is:
o a default in any payment with respect to senior debt; or
o an event of default exists with respect to any senior debt that accelerates the maturity of the senior debt.
The term "senior debt" means, with respect to Dime Community, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of Dime
Community for money borrowed and (B) indebtedness evidenced by securities, debt
securities, notes, bonds or other similar instruments issued by Dime Community;
(ii) all capital lease obligations of Dime Community; (iii) all obligations of
Dime Community issued or assumed as the deferred purchase price of property, all
conditional sale obligations of Dime Community and all obligations of Dime
Community under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of
Dime Community for the reimbursement of any letter of credit, any banker's
acceptance, any security purchase facility, any repurchase agreement or similar
arrangement, any interest rate swap, any other hedging arrangement, any
obligation under options or any similar credit or other transaction; (v) all
obligations of the type referred to in clauses (i) through (iv) above of other
persons for the payment of which Dime Community is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) above of other persons secured by any lien on any
property or asset of Dime Community (whether or not such obligation is assumed
by Dime Community), whether incurred on or prior to the date of the indenture or
thereafter incurred, unless, with the prior approval of the OTS (or such other
bank regulatory authority that is then the primary holding company regulator of
Dime Community) if not otherwise generally approved, in the instrument creating
or evidencing the same or pursuant to which the same is outstanding, it is
provided, that such obligations are not superior or are PARI PASSU in right of
payment to the exchange debt securities; PROVIDED, HOWEVER, that senior debt
shall not include (A) any other debt securities issued to any trust other than
the Trust (or a trustee of such trust), partnership or other entity affiliated
with Dime Community that is a financing entity of Dime Community, in connection
with the issuance by such financing entity of equity securities or other
securities in transactions substantially similar in structure to the transaction
contemplated under the indenture and in the trust agreement or (B) any
guarantees of Dime Community in respect of the equity or other securities of any
financing entity referred to in clause (A) above pursuant to an instrument that
ranks equal in right of payment to the guarantee.
We are a savings and loan holding company and almost all of our operating assets are owned by Dime of Williamsburgh. We are a legal entity separate and distinct from our subsidiaries. Holders of exchange debt securities should look only to us for payments on the exchange debt securities. We rely on dividends from Dime of Williamsburgh to pay for the interest expense on debt obligations of approximately $2.4 million per annum, based on the outstanding amount of debt obligations as of that date, and for our non-bank operating expenses of approximately $750,000 per annum. There are regulatory limitations on the payment of dividends directly or indirectly to us from Dime of Williamsburgh. In addition, Dime of Williamsburgh is subject to certain restrictions imposed by federal law on any extensions of credit to, and certain other transactions with, us and certain other affiliates, and on investments in stock or other securities thereof. Such restrictions prevent us and such other affiliates from borrowing from Dime of Williamsburgh unless the loans are secured by various types of collateral. You should read "Risk Factors -- Dime of Williamsburgh's ability to pay dividends or lend funds to its affiliates is subject to regulatory limitations which may prevent Dime Community from making payments under the subordinated debt securities."
RESTRICTIONS ON TRANSFER
The exchange debt securities will be issued and may be transferred only in minimum denominations of $100,000 and multiples of $1,000 in excess thereof. Any attempted transfer of exchange debt securities in unauthorized denominations will be deemed to be void and of no legal effect whatsoever. Any such purported transferee shall be deemed not to be the holder of such exchange debt securities for any purpose, including, but not limited to, the receipt of payments on such exchange debt securities, and such purported transferee shall be deemed to have no interest whatsoever in such exchange debt securities.
GOVERNING LAW
The indenture and the exchange debt securities will be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles.
INFORMATION CONCERNING THE INDENTURE TRUSTEE
The indenture trustee is not obligated to exercise any of the powers vested in it by the indenture at the request of any holder of exchange debt securities, unless offered reasonable indemnity by the holder against the
costs, expenses and liabilities which might be incurred thereby. The indenture trustee is not required to expend or risk its own funds or otherwise incur personal financial liability in the performance of its duties under the indenture.
DESCRIPTION OF EXCHANGE GUARANTEE
We will execute and deliver the exchange guarantee at the same time the exchange capital securities are issued. The exchange guarantee will be qualified as an indenture under the Trust Indenture Act upon effectiveness of the exchange offer registration statement. The terms of the exchange guarantee are identical in all material respects to the terms of the original guarantee. This summary of the material provisions of the exchange guarantee is not complete and is subject to, and qualified in its entirety by, the exchange guarantee and the Trust Indenture Act. The guarantee trustee will hold the exchange guarantee for the benefit of the holders of the exchange capital securities. You can obtain a copy of the exchange guarantee by requesting it from Dime Community. Wilmington Trust Company will act as guarantee trustee under the exchange guarantee.
GENERAL
We will irrevocably agree to pay in full on a subordinated basis, to the extent set forth herein, the payments with respect to the exchange capital securities to the extent not paid by the Trust. The payments that will be subject to the exchange guarantee are:
o any accrued and unpaid distributions required to be paid on the exchange capital securities, to the extent that the Trust has funds available at that time;
o the applicable redemption price with respect to the exchange capital securities that are (1) called for redemption or (2) mandatorily redeemed, to the extent that the Trust has funds legally available at that time; and
o upon a voluntary or involuntary liquidation, dissolution, winding-up or termination of the Trust (other than in connection with the distribution of the exchange debt securities to holders of the exchange capital securities), the lesser of (a) the liquidation amount and any accrued and unpaid distributions on the exchange capital securities, to the extent the Trust has funds legally available at that time, and (b) the amount of assets of the Trust remaining available for distribution to holders of exchange capital securities after satisfying the liabilities owed to the Trust's creditors as required by applicable law.
The exchange guarantee will rank subordinate and junior to all senior debt to the extent provided in the exchange guarantee, as discussed under " -- Status of the Exchange Guarantee." Our obligation to make a guarantee payment may be satisfied by our direct payment of the required amounts to the holders of the exchange capital securities or by causing the Trust to pay these amounts to the holders of the exchange capital securities.
The exchange guarantee will be an irrevocable guarantee on a subordinated basis of the Trust's obligations under the exchange capital securities, but will apply only to the extent that the Trust has funds sufficient to make these payments. If we do not make interest and other payments on the exchange debt securities held by the Trust, then the Trust will not be able to pay you the distributions and other amounts due on the exchange capital securities since it will not have funds legally available therefor. You should read "Relationship Among the Exchange Capital Securities, the Exchange Debt Securities and the Exchange Guarantee." The exchange guarantee does not limit us or our subsidiaries from incurring or issuing other secured or unsecured debt, including senior debt, whether under the indenture, any other indenture that we may enter into in the future or otherwise.
The holders of a majority in aggregate liquidation amount of the exchange capital securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the guarantee trustee in respect of our exchange guarantee or to direct the exercise of any trust power conferred upon the guarantee trustee under our exchange guarantee. In the event of a failure to make a payment under the exchange guarantee, any holder of the exchange capital securities may institute a legal proceeding directly against us to enforce rights of the guarantee trustee under the exchange guarantee without first instituting a legal proceeding against the Trust, the guarantee trustee or any other person or entity.
If we default on our obligation to pay amounts payable under the exchange debt securities, the Trust will lack funds for the payment of distributions and other amounts when due, and the holders of the exchange capital
securities will not be able to rely upon the exchange guarantee for payment of such amounts. Instead, if an event of default exists that is attributable to our failure to pay principal of or premium, if any, or interest on the exchange debt securities on a payment date, then any holder of exchange capital securities may institute a direct action against us pursuant to the terms of the indenture for enforcement of payment to that holder of the principal of or interest on such exchange debt securities having a principal amount equal to the aggregate liquidation amount of the exchange capital securities of that holder. In connection with a direct action, we will have a right of set-off under the indenture to the extent that we made any payment to the holder of exchange capital securities in the direct action. Except as described herein, holders of exchange capital securities will not be able to exercise directly any other remedy available to the holders of the exchange debt securities or assert directly any other rights in respect of the exchange debt securities. The trust agreement provides that each holder of exchange capital securities by accepting the exchange capital securities agrees to the provisions of the exchange guarantee and the indenture.
We will, through our exchange guarantee, the trust agreement, the exchange debt securities and the indenture, taken together, fully, irrevocably and unconditionally guarantee all of the Trust's obligations under the exchange capital securities. No single document standing alone, or operating in conjunction with fewer than all of the other documents, constitutes that guarantee. Only the combined operation of these documents provides a full, irrevocable and unconditional guarantee of the Trust's obligations under the exchange capital securities. You should read "Relationship Among the Exchange Capital Securities, the Exchange Debt Securities and the Exchange Guarantee" for more information about our guarantee.
STATUS OF THE EXCHANGE GUARANTEE
Our exchange guarantee will constitute an unsecured obligation and will rank subordinate and junior to all present and future senior debt in the same manner as the exchange debt securities, as described under "Description of Exchange Debt Securities -- Subordination." In addition, because we are a holding company, our right to participate in any distribution of Dime of Williamsburgh's assets upon Dime of Williamsburgh's liquidation or reorganization or otherwise is subject to the prior claims of Dime of Williamsburgh's creditors (including its depositors) and preferred equity holders except to the extent we may be recognized as a creditor of Dime of Williamsburgh. Accordingly, our obligations under the exchange guarantee effectively will be subordinated to all existing and future liabilities and preferred equity of our present and future subsidiaries (including depositors of Dime of Williamsburgh). As a result, claimants should look only to our assets for payments under the exchange guarantee. You should read "Risk Factors -- Dime of Williamsburgh's ability to pay dividends or lend funds to its affiliates is subject to regulatory limitations which may prevent Dime Community from making payments under the exchange debt securities" and "Description of Exchange Debt Securities -- General."
Our exchange guarantee will rank equal to all of our other guarantees with respect to preferred beneficial interests issued by our other financing entities. Our exchange guarantee of the Trust's exchange capital securities does not limit the amount of secured or unsecured debt, including senior debt, that we or any of our subsidiaries may incur. We expect from time to time that we will incur additional indebtedness and that our subsidiaries will also incur additional liabilities and may issue preferred equity.
Our exchange guarantee will constitute a guarantee of payment and not of collection, enabling the guaranteed party to institute a legal proceeding directly against us to enforce the rights of the guarantee trustee under the exchange guarantee without first instituting a legal proceeding against any other person or entity. Our exchange guarantee will be held for the benefit of the holders of the exchange capital securities. Our exchange guarantee will not be discharged, except by payment of the guarantee payments in full to the extent that the Trust has not paid, or upon distribution of the exchange debt securities to the holders of the exchange capital securities.
EVENTS OF DEFAULT
There will be an event of default under the exchange guarantee if we fail to perform any of our payment or other obligations under the exchange guarantee. The holders of a majority in liquidation amount of the exchange capital securities will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the guarantee trustee in respect of our exchange guarantee or to direct the exercise of any trust or power conferred upon the guarantee trustee under our exchange guarantee, PROVIDED, HOWEVER, that the guarantee trustee shall have the right to decline to follow any such direction if the guarantee trustee determines that the actions would unjustly prejudice the holders not taking part, or if the guarantee trustee is advised by legal counsel that the
action may not be lawfully taken, or if the guarantee trustee determines that the action would involve the guarantee trustee in personal liability.
In the event of a failure to make a payment under the exchange guarantee, any holder of the exchange capital securities may institute a legal proceeding directly against us to enforce the rights of the guarantee trustee under the exchange guarantee without first instituting a legal proceeding against the Trust, the guarantee trustee or any other person or entity.
We, as guarantor, will be required to file annually with the guarantee trustee a certificate regarding our compliance with the applicable conditions and covenants under our exchange guarantee.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect the rights of holders of the exchange capital securities (in which case no vote will be required), the exchange guarantee may not be amended without the prior approval of the holders of a majority of the liquidation amount of such outstanding exchange capital securities. You should read "Description of Exchange Capital Securities -- Voting Rights; Amendment of the Trust Agreement" for more information about the manner of obtaining the holders' approval. All guarantees and agreements contained in the exchange guarantee agreement shall bind our successors, assigns, receivers, trustees and representatives and shall inure to the benefit of the holders of the exchange capital securities then outstanding. We, as guarantor, may not assign our rights or delegate our obligations under the exchange guarantee, except in connection with any merger or consolidation as permitted by the indenture.
TERMINATION OF THE EXCHANGE GUARANTEE
Our exchange guarantee will terminate upon:
o full payment of the applicable redemption price of all outstanding exchange capital securities;
o full payment of the liquidation distribution payable upon dissolution of the Trust;
o distribution of exchange debt securities to the holders of the exchange capital securities; or
o the exchange of all exchange capital securities pursuant to the exchange offer.
Our exchange guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any holder of the exchange capital securities must restore payment of any sums paid under the exchange capital securities or the exchange guarantee.
INFORMATION CONCERNING THE EXCHANGE GUARANTEE TRUSTEE
The guarantee trustee, unless we default under the exchange guarantee, will undertake to perform only such duties as are specifically set forth in the exchange guarantee and, in case a default with respect to the exchange guarantee has occurred, must exercise the same degree of care and skill as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the guarantee trustee will not be obligated to exercise any of the powers vested in it by the exchange guarantee at the request of any holder of the exchange capital securities unless it is offered reasonable indemnity against the costs, expenses and liabilities that it might incur.
GOVERNING LAW
The exchange guarantee will be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles.
DESCRIPTION OF ORIGINAL CAPITAL SECURITIES
We refer to the original capital securities, the original guarantee and the original debt securities collectively as the original securities and refer to the exchange capital securities, the exchange guarantee and the exchange debt securities collectively as the exchange securities.
The terms of the original securities are identical in all materials respects to the exchange securities, except that:
o the original securities have not been registered under the Securities Act, are subject to certain restrictions on transfer and are entitled to certain rights under the applicable registration rights agreement, which rights will terminate upon consummation of the exchange offer, except under limited circumstances;
o the exchange capital securities will not provide for any increase in the distribution rate; and
o the exchange debt securities will not provide for any liquidated damages.
The original securities provide that, if a registration statement relating to the exchange offer is not declared effective by the SEC on or prior to the 180th day after the issue date, liquidated damages shall accrue on the principal amount of the original junior subordinated debt securities, and additional distributions shall accumulate on the liquidation amount of the original capital securities, each at a rate of 25 basis points per annum. In addition, the original capital securities provide that, if the Trust has not exchanged exchange capital securities for all original capital securities validly tendered by the 45th day after the date on which the registration statement is declared effective, the distribution rate borne by the original capital securities will increase by 25 basis points per annum for the period from the occurrence of such event until such time as the exchange offer has been consummated. The exchange securities are not, and upon consummation of the exchange offer, the original securities will not be, entitled to any such additional interest or distributions. Accordingly, holders of original capital securities should review the information set forth under "Risk Factors--Your failure to exchange original capital securities may adversely affect your ability to sell such securities" and "Description of Exchange Capital Securities."
RELATIONSHIP AMONG THE EXCHANGE CAPITAL SECURITIES, THE
EXCHANGE DEBT SECURITIES AND THE EXCHANGE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
We will irrevocably guarantee payments of distributions and other amounts due on the exchange capital securities to the extent the Trust has funds available to make such payments as and to the extent set forth under "Description of Exchange Guarantee." Taken together, our obligations under the exchange debt securities, the indenture, the trust agreement and the exchange guarantee will provide, a full, irrevocable and unconditional guarantee of the Trust's payments of distributions and other amounts due on the exchange capital securities. No single document standing alone or operating in conjunction with fewer than all of the other documents constitutes this exchange guarantee. Only the combined operation of these documents effectively provides a full, irrevocable and unconditional guarantee of the Trust's obligations under the exchange capital securities.
If and to the extent that we do not make the required payments on the exchange debt securities, the Trust will not have sufficient funds to make its related payments, including distributions on the exchange capital securities. Our exchange guarantee will not cover any payments when the Trust does not have sufficient funds legally available to make those payments. Your remedy, as a holder of exchange capital securities, is to institute a direct action against us. Our obligations will be subordinate and junior to all senior debt.
SUFFICIENCY OF PAYMENTS
As long as we pay the interest and other payments when due on the exchange debt securities, the Trust will have sufficient funds to cover distributions and other amounts due on the exchange capital securities, primarily because:
o the aggregate principal amount or redemption price of the exchange debt securities will equal the sum of the liquidation amount or redemption price, as applicable, of the exchange capital securities;
o the interest rate and interest payment dates and other payment dates on the exchange debt securities will match the distribution rate and distribution payment dates and other payment dates for the exchange capital securities;
o as sponsor, we will pay for all and any costs, expenses and liabilities of the Trust, except for the Trust's obligations to holders of exchange capital securities; and
o the trust agreement also provides that the Trust is not authorized to engage in any activity that is not consistent with its limited purposes.
ENFORCEMENT RIGHTS OF HOLDERS OF EXCHANGE CAPITAL SECURITIES
You, as holder of exchange capital securities, may institute a legal proceeding directly against us for nonpayment of amounts payable on the exchange capital securities and to enforce the rights of the guarantee trustee under our exchange guarantee without first instituting a legal proceeding against the guarantee trustee, the Trust or any other person or entity.
A default or event of default under any senior debt would not constitute a default or event of default under the trust agreement. However, if there are payment defaults under, or accelerations of, senior debt or there is a distribution of our assets upon a bankruptcy, insolvency or similar proceeding involving us, the subordination provisions of the indenture provide that we cannot make payments in respect of the exchange debt securities until we have paid the senior debt in full or we have cured the related default or the related default has been waived. Our failure to make required payments on exchange debt securities would constitute an event of default under the trust agreement.
LIMITED PURPOSE OF THE TRUST
The exchange capital securities will represent beneficial interests in the Trust, and the Trust exists for the sole purpose of issuing and selling the exchange capital securities, using the proceeds from the sale of the original capital securities and the common securities to acquire the original junior subordinated debt securities, exchanging the original capital securities and original junior subordinated debt securities in the exchange offer, and engaging in only those other activities necessary, advisable or incidental thereto. A principal difference between the rights of a holder of a exchange capital security and a holder of a exchange debt security is that a holder of a exchange debt security will be entitled to receive from us the principal of (and premium, if any) and interest on its exchange debt securities, while a holder of exchange capital securities is entitled to receive distributions and other amounts from the Trust (or, in certain circumstances, from us under our exchange guarantee) if and to the extent the Trust has funds legally available to pay such amounts.
RIGHTS UPON DISSOLUTION
Unless the exchange debt securities are distributed to holders of the exchange capital securities, if the Trust is voluntarily or involuntarily dissolved, wound-up or liquidated, after satisfying the liabilities owed to the Trust's creditors as required by applicable law, the holders of the exchange capital securities will be entitled to receive, out of assets held by the Trust, the liquidation distribution in cash. You should read "Description of Exchange Capital Securities -- Liquidation of the Trust and Distribution of Exchange Debt Securities."
If we are voluntarily or involuntarily liquidated or bankrupted, the institutional trustee, as holder of the exchange debt securities, would be one of our subordinated creditors, subordinated in right of payment to all senior debt, but entitled to receive payment in full of the principal of and interest on the exchange debt securities, before any of our stockholders receive payments or distributions. Since we will be the guarantor under the exchange guarantee and will agree to pay all costs, expenses and liabilities of the Trust (other than the Trust's obligations to the holders of its exchange capital securities), the positions of a holder of exchange capital securities and a holder of exchange debt securities relative to other creditors and to our stockholders in the event of our liquidation or bankruptcy are expected to be substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL
In the opinion of Thacher Proffitt & Wood llp, special U.S. federal income tax counsel to us and the Trust, the following describes the material U.S. federal income tax consequences of the purchase, ownership and disposition of a capital security.
This summary addresses only the tax consequences to a person that acquires a capital security on its original issuance at its original price and that holds the security as a capital asset. This summary does not address all tax consequences that may be applicable to a beneficial owner of a capital security and does not address the tax consequences to holders subject to special tax regimes (like banks, thrifts, real estate investment trusts, regulated investment companies, insurance companies, dealers in securities or currencies, tax-exempt investors or persons that will hold a capital security as a position in a "straddle," as part of a "synthetic security" or "hedge" or as part of a "conversion transaction" or other integrated investment). This summary does not include any description of any alternative minimum tax consequences or the tax laws of any state or local government or of any foreign government that may apply to a capital security. Except as noted below in the discussion of Non-U.S. Holders, this discussion is addressed to a U.S. Holder, which is defined as a beneficial owner of a capital security that, for U.S. federal income tax purposes, is (or is treated as):
o a citizen or individual resident of the United States;
o a corporation or partnership (or entity treated for U.S. federal income tax purposes as a corporation or partnership) created or organized in or under the laws of the U.S., any state thereof or the District of Columbia, except in the case of a partnership, to the extent provided in Treasury regulations;
o an estate the income of which is includible in gross income for U.S. federal income tax purposes without regard to its source; or
o a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the ability to control all substantial decisions of the trust.
This summary does not address the tax consequences to any shareholder, partner or beneficiary of a holder of a capital security. This summary is based on the Code, Treasury regulations thereunder and the administrative and judicial interpretations thereof, as of the date hereof, all of which are subject to change, possibly on a retroactive basis. An opinion of Thacher Proffitt & Wood llp is not binding on the Internal Revenue Service, referred to as the IRS, or the courts. No rulings have been or are expected to be sought from the IRS with respect to any of the matters described in this prospectus. We can give no assurance that the opinions expressed herein will not be challenged by the IRS or, if challenged, that the challenge will not be successful.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE CAPITAL SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN, AND OTHER TAX LAWS AND POSSIBLE EFFECTS OF CHANGES IN U.S. FEDERAL OR OTHER TAX LAWS.
EXCHANGE OF CAPITAL SECURITIES
The exchange of the original capital securities for exchange capital securities pursuant to the exchange offer should not be treated as an exchange for U.S. federal income tax purposes and, therefore, should not be a taxable event to holders for U.S. federal income tax purposes, because the exchange capital securities should not be considered to differ materially in kind or extent from the original capital securities and because the exchange will occur by operation of the terms of the original capital securities. If the exchange were treated as an exchange for U.S. federal income tax purposes, such exchange should constitute a recapitalization for U.S. federal income tax purposes. Accordingly, the exchange capital securities should have the same issue price as the original capital securities, and a holder should have the same adjusted tax basis and holding period in the exchange capital securities as such holder had in the original capital securities immediately prior to the exchange.
CLASSIFICATION OF THE EXCHANGE DEBT SECURITIES
We intend to take the position that the exchange debt securities will be classified for U.S. federal income tax purposes as our indebtedness. We, together with the Trust and the holders of the exchange capital securities (by acceptance of a beneficial interest in an exchange capital security) will agree to treat the exchange debt securities as our indebtedness for all U.S. federal income tax purposes. We cannot be sure that this position will not be challenged by the IRS or, if challenged, that the challenge will not be successful. The remainder of this discussion assumes that the exchange debt securities will be classified as our indebtedness for U.S. federal income tax purposes.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the exchange capital securities, Thacher Proffitt & Wood llp will render its opinion that, under then current law and assuming full compliance with the terms of the trust agreement and the Indenture (and certain other documents), and based on certain facts and assumptions contained in that opinion, the Trust will be classified for U.S. federal income tax purposes as a grantor trust and will not be classified as an association taxable as a corporation. Accordingly, for U.S. federal income tax purposes, the Trust will not be subject to U.S. federal income tax, each holder of an exchange capital security will be considered the owner of an undivided portion of the exchange debt securities owned by the Trust and each holder of an exchange capital security will be required to include in its gross income any interest (or accrued original issue discount), with respect to its allocable share of the exchange debt securities.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under the terms of the Indenture, we have the right to defer the payment of interest on the exchange debt securities at any time or from time to time for one or more extension periods not exceeding 20 consecutive quarterly periods each, PROVIDED, THAT no extension period shall end on a date other than an interest payment date or extend beyond April 14, 2034. By reason of that right, the Treasury regulations will subject the exchange debt securities to the rules in the Internal Revenue Code, referred to as the Code, and Treasury regulations on debt instruments issued with original issue discount, unless the Indenture or exchange debt securities contain terms or conditions that make the likelihood of exercise of the extension option remote. Under the Treasury regulations, a "remote" contingency that stated interest will not be timely paid will be ignored in determining whether a debt instrument is issued with original issue discount. Although the answer is not clear, we believe that the likelihood that we would exercise our option to defer payments of interest is "remote" since exercising that option would, among other things, prevent us from declaring dividends on any class of our equity securities. Accordingly, we intend to take the position that the exchange debt securities will not be considered to be issued with original issue discount and, accordingly, stated interest on the exchange debt securities generally will be taxable to a U.S. Holder as ordinary income at the time it is paid or accrued in accordance with such holder's regular method of tax accounting.
Under the Treasury regulations, if we were to exercise our option to defer payments of interest, the exchange debt securities would at that time be treated as issued with original issue discount, and all stated interest (including any liquidated damages) on the exchange debt securities would thereafter be treated as original issue discount as long as the exchange debt securities remain outstanding. If this occurred, all of a U.S. Holder's interest income (including any liquidated damages) with respect to the exchange debt securities would thereafter be accounted for on an economic accrual basis over the remaining term of the exchange debt securities regardless of
such holder's regular method of tax accounting, and actual distributions of stated interest would not be separately reported as taxable income. Consequently, a holder of an exchange capital security would be required to include in gross income original issue discount even though we would not make actual cash payments during an extension period. The amount of such includible original issue discount could be significant. Also, under the Treasury regulations, if the option to defer the payment of interest were determined not to be "remote," the exchange debt securities would be treated as having been originally issued with original issue discount. In such event a U.S. Holder would be required to include in gross income an amount of original issue discount each taxable year that approximates the amount of interest that accrues on the exchange debt securities at the stated interest rate, regardless of such holder's regular method of tax accounting, and actual cash payments of interest on the exchange debt securities would not be separately includible in gross income. These Treasury regulations have not yet been addressed in any rulings or other interpretations by the IRS, and it is possible that the IRS could take a position contrary to the interpretation described in this prospectus.
Because income on the exchange capital securities will constitute interest or original issue discount, corporate holders of the exchange capital securities will not be entitled to a dividends-received deduction with respect to any income recognized with respect to the exchange capital securities.
RECEIPT OF EXCHANGE DEBT SECURITIES OR CASH UPON LIQUIDATION OF THE TRUST
We will have the right at any time to liquidate the Trust and cause the exchange debt securities to be distributed to the holders of the exchange capital securities and common securities, provided that we receive (i) an opinion of counsel to the effect that if we distribute the exchange debt securities, the holders of the exchange capital securities will not experience a taxable event and (ii) any regulatory approval. Under current law, the liquidation of the Trust and the distribution of the exchange debt securities to U.S. Holders of exchange capital securities, for U.S. federal income tax purposes, would be treated as a nontaxable event to each holder, and the aggregate adjusted tax basis in the exchange debt securities received by such holder would be equal to the holder's aggregate adjusted tax basis in its exchange capital securities surrendered. A U.S. Holder's holding period in the exchange debt securities received in liquidation of the Trust would be no shorter than the period during which the exchange capital securities were held by that holder.
If a U.S. Holder receives exchange debt securities in exchange for such holder's exchange capital securities, the U.S. Holder would continue to accrue interest, and original issue discount, if any, in respect of those exchange debt securities in the manner described above.
The exchange debt securities may be redeemed in cash, and the proceeds of that redemption would be distributed to holders in redemption of their exchange capital securities. Under current law, that redemption would constitute, for U.S. federal income tax purposes, a taxable disposition of the redeemed capital securities, the tax consequences of which are described below under " -- Sales or Redemptions of Exchange Capital Securities."
SALES OR REDEMPTIONS OF EXCHANGE CAPITAL SECURITIES
On a sale or redemption of a exchange capital security for cash, a U.S. Holder will recognize gain or loss equal to the difference between its adjusted tax basis in the exchange capital security and the amount realized on the sale or redemption of that exchange capital security. If the rules regarding original issue discount do not apply, a U.S. Holder's adjusted tax basis in a exchange capital security generally will be its initial purchase price, and if the holder uses an accrual method of accounting, the holder will have a basis in any accrued but unpaid interest. If the rules regarding original issue discount apply, a U.S. Holder's adjusted tax basis in a exchange capital security generally will be its initial purchase price increased by any original issue discount previously included in the holder's gross income to the date of disposition and decreased by any payments received on the exchange capital security (other than any payments of interest or liquidated damages received with respect to the periods prior to the effective date of Dime Community's exercise of its option to defer payments of interest in the event that the rules regarding original issue discount were to apply solely as a result of such exercise). Gain or loss recognized on a sale or redemption of a exchange capital security will be capital gain or loss. Capital gain recognized by an individual in respect of an exchange capital security held for more than one year as of the date of sale or redemption is subject to a maximum U.S. federal income tax rate of 15%.
The exchange capital securities may trade at a price that discounts any accrued but unpaid interest on the exchange debt securities. Therefore, the amount realized by a U.S. Holder who disposes of an exchange capital security between distribution payment dates and whose adjusted tax basis in the exchange capital security has been increased by the amount of any accrued but unpaid original issue discount (or interest) may be less than the holder's adjusted tax basis in the exchange capital security. A U.S. Holder's adjusted tax basis in an exchange capital security could be increased either under the rules regarding original issue discount or, if those rules do not apply, in the case of a holder that uses an accrual method of accounting, under the accrual accounting rules. In that case, the U.S. Holder will recognize a capital loss. Subject to a limited exception in the case of individual taxpayers, capital losses cannot be applied to offset ordinary income for U.S. federal income tax purposes.
NON-U.S. HOLDERS
For purposes of this discussion, a "Non-U.S. Holder" is a beneficial owner of an exchange capital security that is not a U.S. Holder.
Under current U.S. federal income tax laws, subject to the discussion
below of backup withholding, payments by the Trust or any of its paying agents
to a Non-U.S. Holder will not be subject to U.S. federal income or withholding
tax, PROVIDED, THAT the Non-U.S. Holder (a) does not own, actually or
constructively, ten percent or more of the total combined voting power of all
classes of our stock entitled to vote, (b) is not a controlled foreign
corporation that is related to us through stock ownership, (c) is not a bank
whose receipt of interest on the exchange debt securities is described in
Section 881(c)(3)(A) of the Code, and (d) is not a person within a foreign
country which the IRS has included in a list of countries that do not provide
adequate exchange of information with the U.S. to prevent tax evasion by U.S.
persons, and either (A) the Non-U.S. Holder certifies, on IRS Form W-8BEN (or
appropriate successor document), to the Trust or its agent, under penalties of
perjury, that it is not a U.S. Holder and provides its name and address or (B) a
securities clearing organization, bank or other financial institution that holds
customers' securities in the ordinary course of business, referred to as a
"Financial Institution," and holds the exchange capital security in that
capacity certifies to the Trust or its agent, under penalties of perjury, that
the statement has been received from the Non-U.S. Holder by it or by a Financial
Institution between it and the Non-U.S. Holder and furnishes the Trust or its
agent with a copy thereof.
If a Non-U.S. Holder does not qualify for the foregoing exemption from withholding, payments of interest, including liquidated damages and payments relating to any accrued original issue discount, to that Non-U.S. Holder may be subject to withholding tax at a tax rate of 30%, which tax may be subject to reduction, including exemption, under any applicable tax treaty, provided the Non-U.S. Holder supplies at the time of its initial purchase, and at all subsequent times as are required under the Treasury regulations, a properly executed IRS Form W-8BEN, or appropriate successor form, to report its eligibility for that reduced rate or exemption.
If a Non-U.S. Holder is engaged in a trade or business in the U.S. and interest on the exchange capital securities (or the exchange debt securities) is effectively connected with the conduct of that trade or business, the Non-U.S. Holder, although exempt from the withholding tax discussed above, will be subject to U.S. federal income tax on that interest (and any liquidated damages) at graduated rates on a net income basis in generally the same manner as if it were a U.S. Holder, provided the Non-U.S. Holder supplies, at the time of its initial purchase, and at all subsequent times that are required under the Treasury regulations, a written statement, such as a properly executed IRS Form W-8ECI, or appropriate successor form, that such income is, or is expected to be, effectively connected with the conduct of a trade or business within the U.S. of that holder and is includible in the holder's gross income for the taxable year. In addition, if such Non-U.S. Holder is a foreign corporation, it may be subject to a branch profits tax equal to 30% of its effectively connected earnings and profits that are repatriated or treated as repatriated. For this purpose, the interest income would be included in the foreign corporation's earnings and profits. In the case of a Non-U.S. Holder entitled to the benefits of a tax treaty with the U.S., the foregoing discussion generally applies only if the Non-U.S. Holder is engaged in business in the U.S. through a U.S. permanent establishment and the income on the exchange debt securities is attributable to that permanent establishment within the meaning of the treaty, and the rate of the branch profits tax may be limited to a rate prescribed by the treaty for the withholding of tax on dividends.
Any gain recognized upon a sale or other disposition of exchange capital securities (or exchange debt securities) generally will not be subject to U.S. federal income tax unless (1) the gain is, or is treated as, effectively connected with a U.S. trade or business of the Non-U.S. Holder or (2) in the case of a Non-U.S. Holder who is an
individual, that individual is present in the U.S. for 183 days or more in the taxable year of the sale or other disposition, and certain other conditions are met.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest, including original issue discount, accrued on exchange capital securities held of record by U.S. persons (other than corporations and other exempt holders) will be reported to the IRS. "Backup withholding" will apply to payments of interest to non-exempt U.S. persons unless the holder furnishes its taxpayer identification number in the manner prescribed in applicable Treasury regulations, certifies that the number is correct, certifies as to no loss of exemption from backup withholding and meets certain other conditions. The current backup withholding rate is 28%.
Payment of the proceeds from the disposition of exchange capital securities to or through the U.S. office of a broker is subject to information reporting and backup withholding unless the holder or beneficial owner establishes an exemption from information reporting and backup withholding.
Non-U.S. Holders are generally exempt from the backup withholding rules but are required to comply with certification and identification requirements to prove their exemption. Non-U.S. Holders may be subject to certain information reporting rules.
Any amount withheld from a holder under the backup withholding rules will be allowed as a refund or credit against such holder's U.S. federal income tax liability, provided the required information is furnished to the IRS.
It is anticipated that income on exchange capital securities will be reported to holders on Form 1099 (or any successor form) and mailed to holders of exchange capital securities by January 31 following each calendar year.
THE U.S. FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR SITUATION. YOU SHOULD CONSULT YOUR TAX ADVISER WITH RESPECT TO THE TAX CONSEQUENCES TO YOU OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF A EXCHANGE CAPITAL SECURITY, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN U.S. FEDERAL OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
GENERAL
In evaluating the purchase of exchange capital securities, a fiduciary of a qualified profit-sharing, pension or stock bonus plan, including a plan for self-employed individuals and their employees or any other employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, referred to as ERISA, a collective investment fund or separate account in which such plans invest and any other investor using assets that are treated as assets of an employee benefit plan subject to ERISA, each, referred to as a Plan and, collectively, Plans, should consider:
o whether the ownership of exchange capital securities is in accordance with the documents and instruments governing such Plan;
o whether the ownership of exchange capital securities is solely in the interest of Plan participants and beneficiaries and otherwise consistent with the fiduciary's responsibilities and in compliance with the requirements of Part 4 of Title I of ERISA, including, in particular, the diversification, prudence and liquidity requirements of Section 404 of ERISA and the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code; or
o whether the assets of the Trust are treated as assets of the Plan; and
o the need to value the assets of the Plan annually.
In addition, the fiduciary of an individual retirement arrangement or other entity subject to Section 4975 of the Code, referred to as an IRA, considering the purchase of exchange capital securities should consider whether the ownership of the exchange capital securities would result in a non-exempt prohibited transaction under Section 4975 of the Code.
Governmental plans and certain church plans (each as defined under ERISA) are not subject to the prohibited transaction rules. Such plans may, however, be subject to federal, state or local laws or regulations which may affect their investment in the exchange capital securities. Any fiduciary of such a governmental or church plan considering an investment in the exchange capital securities should determine the need for, and the availability, if necessary, of any exemptive relief under such laws or regulations.
The fiduciary investment considerations summarized below provide a general discussion that does not include all of the fiduciary investment considerations relevant to Plans and, where indicated, IRAs. This summary is based on the current provisions of ERISA and the Code and regulations and rulings thereunder, and may be changed (perhaps adversely and with retroactive effect) by future legislative, administrative or judicial action.
PLANS AND IRAS THAT ARE PROSPECTIVE PURCHASERS OF EXCHANGE CAPITAL SECURITIES SHOULD CONSULT WITH AND RELY UPON THEIR OWN ADVISORS IN EVALUATING THESE MATTERS IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES.
PLAN ASSET REGULATION
Under Department of Labor regulations governing what constitutes the assets of a Plan or IRA, referred to as Plan Assets, for purposes of ERISA and the related prohibited transaction provisions of the Code, referred to as the Plan Asset Regulation, 29 C.F.R. Sec. 2510.3-101, when a Plan or IRA acquires an equity interest in another entity, and such interest does not represent a "publicly offered security" or a security issued by an investment company registered under the Investment Company Act, the Plan's assets include both the equity interest and an undivided interest in each of the underlying assets of the entity, unless it is established either that the entity is an operating company or that equity participation in the entity by "benefit plan investors," as defined in the Plan Asset Regulation, is not "significant." For purposes of the Plan Asset Regulation, the Trust will be neither an investment company nor an operating company, and the exchange capital securities are not expected to represent "publicly offered securities."
Under the Plan Asset Regulation, equity participation by benefit plan investors will not be considered "significant" on any date only if immediately after the most recent acquisition of the exchange capital securities, the aggregate interest in the exchange capital securities held by benefit plan investors will be less than 25% of the aggregate outstanding principal amount of the exchange capital securities. Although it is possible that the equity participation by benefit plan investors on any date will not be "significant" for purposes of the Plan Asset Regulation, such a result cannot be assured. Consequently, if Plans, IRAs or investors using assets of Plans purchase the exchange capital securities, the Trust's assets could be deemed to be Plan Assets of such Plans and/or IRAs for purposes of the fiduciary responsibility provisions of ERISA and the prohibited transactions rules of ERISA and the Code. Under ERISA and the Code, any person who exercises any authority or control respecting the management or disposition of the assets of a Plan or IRA is considered to be a fiduciary of such Plan or IRA. The institutional trustee of the Trust could therefore become a fiduciary of the Plans and IRAs that invest in the exchange capital securities and be subject to the general fiduciary requirements of ERISA in exercising its authority with respect to the management of the assets of the Trust. However, the institutional trustee will have only limited discretionary authority with respect to the Trust assets and the remaining functions and responsibilities performed by the institutional trustee will be for the most part custodial and ministerial in nature.
PROHIBITED TRANSACTIONS
Each of the Trust, Dime Community (the obligor with respect to the exchange debt securities held by the Trust) and their affiliates or the institutional trustee may be a party in interest or a disqualified person with respect to a Plan or IRA investing in the exchange capital securities. Therefore, such investment by a Plan or IRA may give rise to a prohibited transaction. Consequently, before investing in the exchange capital securities or acquiring exchange debt securities, any person who is, or who is acquiring such securities for, or on behalf of, a Plan or IRA should determine that either a statutory or an administrative exemption from the prohibited transaction rules discussed below or otherwise available is applicable to such investment in the exchange capital securities, or that such investment in, or acquisition of, such securities will not result in a non-exempt prohibited transaction.
The statutory or administrative exemptions from the prohibited transaction rules under ERISA and the Code which may be available to a Plan or IRA which is investing in the exchange capital securities include the following, referred to collectively as the ERISA Investor Exemptions:
o Prohibited Transaction Class Exemption, referred to as PTCE, 90-1, regarding investments by insurance company pooled separate accounts;
o PTCE 91-38, regarding investments by bank collective investment funds;
o PTCE 84-14, regarding transactions effected by qualified professional asset managers;
o PTCE 96-23, regarding transactions effected by in-house asset managers; and
o PTCE 95-60, regarding investments by insurance company general accounts.
No person who is, or who in acquiring exchange capital securities is using the assets of, a Plan or IRA may acquire exchange capital securities unless one of the ERISA Investor Exemptions or another applicable exemption is available to the Plan or IRA, or such acquisition or holding of the exchange capital securities will not result in a nonexempt Prohibited Transaction. The acquisition of the exchange capital securities by any person who is, or who in acquiring such exchange capital securities is using the assets of, a Plan or IRA shall be deemed to constitute a representation by such person to the trustee of the Trust, Dime Community and the initial purchaser either that:
o it is not a Plan, IRA, trustee or other person acting on behalf of a Plan or IRA or other person or entity using the assets of any Plan or IRA to finance such purchase; or
o such acquisition is eligible for the exemptive relief in one of the ERISA Investor Exemptions or another applicable exemption and will not result in a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code for which there is no applicable statutory or administrative exemption.
In the case of exchange capital securities delivered in certificated form, the purchaser will be required to make such representation, in writing, to the trustees of the Trust, Dime Community and the initial purchaser.
THE DISCUSSION OF ERISA HEREIN IS GENERAL IN NATURE AND IS NOT INTENDED TO BE ALL INCLUSIVE. ANY FIDUCIARY OF A PLAN, IRA, GOVERNMENTAL PLAN OR CHURCH PLAN CONSIDERING AN INVESTMENT IN THE EXCHANGE CAPITAL SECURITIES SHOULD CONSULT WITH ITS LEGAL ADVISORS REGARDING THE CONSEQUENCES OF SUCH INVESTMENT AND CONSIDER WHETHER THE PLAN OR IRA CAN MAKE THE REPRESENTATIONS NOTED ABOVE.
FURTHER, THE SALE OF INVESTMENTS TO PLANS AND IRAS IS IN NO RESPECT A REPRESENTATION BY THE TRUST, DIME COMMUNITY, THE INSTITUTIONAL TRUSTEE, THE INITIAL PURCHASER OR ANY OTHER PERSON ASSOCIATED WITH THE SALE OF THE EXCHANGE CAPITAL SECURITIES THAT SUCH SECURITIES MEET ALL RELEVANT LEGAL REQUIREMENTS WITH RESPECT TO INVESTMENTS BY PLANS AND IRAS GENERALLY OR ANY PARTICULAR PLAN, OR THAT SUCH SECURITIES ARE OTHERWISE APPROPRIATE FOR PLANS AND IRAS GENERALLY OR ANY PARTICULAR PLAN.
ANY PURCHASER PROPOSING TO ACQUIRE EXCHANGE CAPITAL SECURITIES WITH
ASSETS OF ANY PLAN OR IRA SHOULD CONSULT WITH ITS COUNSEL.
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange capital securities for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such exchange capital securities. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange capital securities received in exchange for original capital securities where such original capital securities were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Trust and we have agreed that, starting on the expiration date and ending on the close of business on the 90th day following the expiration date, the Trust and we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, for a period of 90 days after the expiration date, all dealers effecting transactions in the exchange capital securities may be required to deliver a prospectus.
The Trust and we will not receive any proceeds from any sale of exchange capital securities by broker-dealers. Exchange capital securities received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions, in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange capital securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such exchange capital securities. Any broker-dealer that resells exchange capital securities that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of such exchange capital securities may be deemed to be an underwriter within the meaning of the Securities Act and any profit of any such resale of exchange capital securities and any commissions or concessions received by any such persons or entities may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act.
For a period of 90 days after the expiration date, the Trust and we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. The Trust and we have agreed to pay all expenses incident to the exchange offer, including the expenses of one counsel for the holders of the original capital securities, other than commissions or concessions of any brokers or dealers and will indemnify the holders of the exchange capital securities, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
Certain legal matters will be passed upon for us by Thacher Proffitt & Wood llp, our special counsel. Certain matters of Delaware law relating to the validity of the exchange capital securities will be passed upon on behalf of the Trust by Morris, James, Hitchens & Williams LLP, special Delaware counsel to the Trust. Certain
matters relating to United States federal income tax considerations will be passed upon for us by Thacher Proffitt & Wood llp, special tax counsel to us.
RATINGS
Neither the original capital securities nor the exchange capital securities have been rated by a rating agency.
EXPERTS
The financial statements incorporated in this prospectus by reference from Dime Community's Annual Report on Form 10-K for the year ended December 31, 2003, have been audited by Deloitte & Touche LLP, independent registered public accounting firm, as stated in their report which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
You should rely only on the information contained in this prospectus or that to which we have referred you. We have not authorized anyone to provide you with any additional or different information. This prospectus does not constitute an offer to sell, or the solicitation of an offer to buy, any of the securities offered hereby to any person in any jurisdiction in which such offer or solicitation would be unlawful. The affairs of Dime Community or the Trust may change after the date of this prospectus.
TABLE OF CONTENTS
Available Information...............................1 Incorporation Of Certain Documents By Reference.....2 Forward Looking Statements..........................2 Summary.............................................4 The Exchange Offer..................................6 The Exchange Capital Securities....................10 Selected Consolidated Financial And Other Data.....14 Risk Factors.......................................16 Use Of Proceeds....................................26 Accounting Treatment...............................26 Capitalization.....................................27 Consolidated Ratios Of Earnings To Fixed Charges...................................28 Dime Community Bancshares, Inc.....................29 Dime Community Capital Trust I.....................30 The Exchange Offer.................................30 Description Of Exchange Capital Securities.........40 Description Of Exchange Debt Securities............53 Description Of Exchange Guarantee..................64 Description Of Original Capital Securities.........67 Relationship Among The Exchange Capital Securities, The Exchange Debt Securities And The Exchange Guarantee..........................................67 Certain Federal Income Tax Consequences............69 Erisa Considerations...............................74 Plan Of Distribution...............................76 Legal Matters......................................76 Ratings............................................77 Experts............................................77 ================================================================================ |
$70,000,000
DIME COMMUNITY CAPITAL TRUST I
OFFER TO EXCHANGE ITS
7.0% CAPITAL SECURITIES, SERIES B (LIQUIDATION AMOUNT $1,000
PER EXCHANGE CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND
ALL OF ITS OUTSTANDING
7.0% CAPITAL SECURITIES, SERIES A (LIQUIDATION AMOUNT $1,000
PER ORIGINAL CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED, TO THE EXTENT DESCRIBED
IN THIS PROSPECTUS, BY
[DIME LOGO]
PROSPECTUS
_______, 2004
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL"), inter alia, empowers a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Similar indemnity is authorized for such person against expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of any such threatened, pending or completed action or suit if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and provided further that (unless a court of competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the corporation. Any such indemnification may be made only as authorized in each specific case upon a determination by the shareholders or disinterested directors or by independent legal counsel in a written opinion that indemnification is proper because the indemnitee has met the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him, and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
Article IX of the Certificate of Incorporation of Dime Community Bancshares, Inc., referred to as Dime Community, provides that a director shall not be personally liable to Dime Community or its shareholders for damages for breach of his fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is expressly prohibited by the DGCL. Article X of our Certificate of Incorporation requires us, among other matters, to indemnify to the fullest extent permitted by the DGCL, any person who is or was or has agreed to become a director or officer of Dime Community, who was or is made a party to, or is threatened to be made a party to, or has become a witness in, any threatened, pending or completed action, suit or proceeding, including actions or suits by or in the right of Dime Community, by reason of such agreement or service or the fact that such person is, was or has agreed to serve as a director, officer, employee or agent of another corporation or organization at the request of Dime Community.
Article X also empowers Dime Community to purchase and maintain insurance to protect itself and its directors and officers, and those who were or have agreed to become directors or officers, against any liability, regardless of whether or not we would have the power to indemnify those persons against such liability under the law or the provisions set forth in the Certificate of Incorporation. We are also authorized by our Certificate of Incorporation to enter into individual indemnification contracts with directors and officers. We currently maintain directors' and officers' liability insurance consistent with the provisions of the Certificate of Incorporation.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The exhibits and financial statement schedules filed as a part of this Registration Statement are as follows:
(a) List of Exhibits.
EXHIBIT NO. DESCRIPTION
4.1 Indenture between Dime Community Bancshares, Inc. and Wilmington Trust Company, as Indenture Trustee,
dated as of March 19, 2004, relating to the Original Debt Securities.
4.2 Form of Certificate of Exchange Debt Securities (filed as Exhibit A to Exhibit 4.1 of this
registration statement).
4.3 Certificate of Trust of Dime Community Capital Trust I, dated as of March 12, 2004.
4.4 Declaration of Trust of Dime Community Capital Trust I, dated as of March 11, 2004.
4.5 Second Amended and Restated Declaration of Trust for Dime Community Capital Trust I, dated as of July
29, 2004.
4.6 Certificate of Common Securities of Dime Community Capital Trust I.
4.7 Form of Exchange Capital Security Certificate for Dime Community Capital Trust I (filed as Exhibit
A-1-B to Exhibit 4.5 of this registration statement).
4.8 Series A Guarantee Agreement of Dime Community Bancshares, Inc. and Wilmington Trust Company, dated
as of March 19, 2004.
4.9 Series B Guarantee Agreement of Dime Community Bancshares, Inc. and Wilmington Trust Company.
4.10 Registration Rights Agreement among Dime Community Bancshares, Inc., Dime Community Capital Trust I,
and Sandler O'Neill & Partners, L.P., dated as of March 12, 2004.
4.11 Liquidated Damages Agreement among Dime Community Bancshares, Inc., Dime Community Capital Trust I,
and Sandler O'Neill & Partners, L.P., dated as of March 12, 2004.
5.1 Opinion of Thacher Proffitt & Wood llp as to the validity of the securities registered hereunder
(including the consent of that firm).
8.1 Opinion of Thacher Proffitt & Wood llp as to certain federal income tax matters (including the
consent of that firm).
12.1 Computation of ratio of earnings to combined fixed charges (excluding interest on deposits).
12.2 Computation of ratio of earnings to combined fixed charges (including interest on deposits).
23.1 Consent of Thacher Proffitt & Wood llp (included as part of Exhibits 5.1 and 8.1).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included in the signature page of this registration statement).
25.1 Form T-1 Statement of Eligibility of Wilmington Trust Company to act as trustee for the Exchange
Capital Securities of Dime Community Capital Trust I.
25.2 Form T--l Statement of Eligibility of Wilmington Trust Company to act as trustee for the Exchange debt
securities of Dime Community Bancshares, Inc.
25.3 Form T-l Statement of Eligibility of Wilmington Trust Company to act as trustee for the Dime
Community Bancshares, Inc. Exchange Guarantee with respect to Exchange Capital Securities
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Exchange Agent Agreement of Dime Community Capital Trust I and Wilmington Trust Company.
99.4 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
99.5 Form of Client Letter.
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ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(A) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission, referred to as the SEC, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(B) For purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and each filing of an employee benefit plan's annual report pursuant to Section 15 of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(C) To respond to requests for information that is
incorporated by reference into the Prospectus pursuant to Item 4,
10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained
in documents filed subsequent to the effective date of the registration
statement through the date of responding to the request.
(D) To supply by means of a post-effective amendment all information concerning a transaction, and the Registrant being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
Insofar as indemnification by the Registrant for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrants have duly caused this Registration Statement on Form S-4 to be signed on their behalf by the undersigned, thereunto duly authorized, in the city of New York in the State of New York, on July 29, 2004.
DIME COMMUNITY BANCSHARES, INC.
By: /s/ Vincent F. Palagiano
--------------------------------------
Vincent F. Palagiano
Chairman of the Board and
Chief Executive Officer
By: /s/ Kenneth J. Mahon
--------------------------------------
Kenneth J. Mahon
Executive Vice President and
Chief Financial Officer
By: /s/ Vincent F. Palagiano
--------------------------------------
Vincent F. Palagiano
Director
By: /s/ Michael P. Devine
--------------------------------------
Michael P. Devine
Director
By: /s/ Kenneth J. Mahon
--------------------------------------
Kenneth J. Mahon
Director
By: /s/ Anthony Bergamo
--------------------------------------
Anthony Bergamo
Director
By: /s/ George L. Clark, Jr.
--------------------------------------
George L. Clark, Jr.
Director
By: /s/ Steven D. Cohn
--------------------------------------
Steven D. Cohn
Director
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By: /s/ Joseph H. Farrell
--------------------------------------
Joseph H. Farrell
Director
By: /s/ John J. Flynn
--------------------------------------
John J. Flynn
Director
By: /s/ Louis V. Varone
--------------------------------------
Louis V. Varone
Director
By: /s/ Patrick E. Curtin
--------------------------------------
Patrick E. Curtin
Director
By: /s/ Fred P. Fehrenbach
--------------------------------------
Fred P. Fehrenbach
Director
By: /s/ Stanley Meisels
--------------------------------------
Stanley Meisels
Director
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DIME COMMUNITY CAPITAL TRUST I
By: /s/ Kenneth J. Mahon
--------------------------------------
Kenneth J. Mahon
Administrator
By: /s/ Michael Pucella
--------------------------------------
Michael Pucella
Administrator
By: /s/ Lance Bennett
--------------------------------------
Lance Bennett
Administrator
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POWER OF ATTORNEY
We, the undersigned directors and officers of Dime Community Bancshares, Inc., do hereby severally constitute and appoint Lance Bennett our true and lawful attorney and agent, to do any and all things and acts in our names in the capacities indicated below and to execute any all instruments for us and in our names in the capacities indicated below which said person may deem necessary or advisable to enable Dime Community Bancshares, Inc. to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with the offering contemplated by this Registration Statement on Form S-4, including specifically, but not limited to, power and authority to sign for us or any of us in our names in the capacities indicated below and any and all amendments, including post-effective amendments to this Registration Statement and any Rule 462(b) registration statement or amendments thereto; and we hereby ratify and confirm all that said person shall do or cause to be done by virtue hereof
Pursuant to the requirements of the Securities Act of 1933, as amended, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Name Date
---- ----
By: /s/ Vincent F. Palagiano July 29, 2004
----------------------------------------- -------------
Vincent F. Palagiano
Director, Chairman of the Board and
Chief Executive Officer
By: /s/ Kenneth J. Mahon July 29, 2004
----------------------------------------- -------------
Kenneth J. Mahon
Director, Executive Vice President and
Chief Financial Officer
By: /s/ Michael P. Devine July 29, 2004
----------------------------------------- -------------
Michael P. Devine
Director
By: /s/ Anthony Bergamo July 29, 2004
----------------------------------------- -------------
Anthony Bergamo
Director
By: /s/ George L. Clark, Jr. July 29, 2004
----------------------------------------- -------------
George L. Clark, Jr.
Director
85
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By: /s/ Steven D. Cohn July 29, 2004
----------------------------------------- -------------
Steven D. Cohn
Director
By: /s/ Joseph H. Farrell July 29, 2004
----------------------------------------- -------------
Joseph H. Farrell
Director
By: /s/ John J. Flynn July 29, 2004
----------------------------------------- -------------
John J. Flynn
Director
By: /s/ Louis V. Varone July 29, 2004
----------------------------------------- -------------
Louis V. Varone
Director
By: /s/ Patrick E. Curtin July 29, 2004
----------------------------------------- -------------
Patrick E. Curtin
Director
By: /s/ Fred P. Fehrenbach July 29, 2004
----------------------------------------- -------------
Fred P. Fehrenbach
Director
By: /s/ Stanley Meisels July 29, 2004
----------------------------------------- -------------
Stanley Meisels
Director
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DIME COMMUNITY BANCSHARES, INC.
INDENTURE
Dated as of March 19, 2004
Wilmington Trust Company,
as Indenture Trustee
FIXED RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBT SECURITIES
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS.................................................................................1
SECTION 1.01 Definitions..............................................................................1
SECTION 1.02 Business Day Certificate.................................................................9
ARTICLE II DEBT SECURITIES.............................................................................9
SECTION 2.01 Authentication and Dating................................................................9
SECTION 2.02 Form of Indenture Trustee's Certificate of Authentication...............................10
SECTION 2.03 Form and Denomination of Debt Securities................................................10
SECTION 2.04 Execution of Debt Securities............................................................11
SECTION 2.05 Legends.................................................................................11
SECTION 2.06 Global Security.........................................................................12
SECTION 2.07 Computation of Interest.................................................................13
SECTION 2.08 Extension of Interest Payment Period....................................................14
SECTION 2.09 Transfer and Exchange...................................................................15
SECTION 2.10 Mutilated, Destroyed, Lost or Stolen Debt Securities....................................17
SECTION 2.11 Temporary Securities....................................................................18
SECTION 2.12 Cancellation............................................................................19
SECTION 2.13 CUSIP Numbers...........................................................................19
ARTICLE III PARTICULAR COVENANTS OF THE COMPANY........................................................19
SECTION 3.01 Payment of Principal and Interest: Agreed Treatment of the Debt Securities.............19
SECTION 3.02 Offices for Notices and Payments, etc...................................................20
SECTION 3.03 Appointments to Fill Vacancies in Indenture Trustee's Office............................21
SECTION 3.04 Provision as to Paying Agent............................................................21
SECTION 3.05 Certificate to Indenture Trustee........................................................22
SECTION 3.06 Additional Amounts......................................................................22
SECTION 3.07 Compliance with Consolidation Provisions................................................23
SECTION 3.08 Limitation on Dividends.................................................................23
SECTION 3.09 Covenants as to Dime Community Capital Trust I..........................................23
SECTION 3.10 Payment of Expenses.....................................................................24
SECTION 3.11 Payment Upon Resignation or Removal.....................................................24
ARTICLE IV LIST OF SECURITYHOLDERS AND REPORTS BY THE COMPANY AND THE INDENTURE TRUSTEE...............25
SECTION 4.01 List of Securityholders.................................................................25
SECTION 4.02 Preservation and Disclosure of Lists....................................................25
SECTION 4.03 Reports by the Company..................................................................26
SECTION 4.04 Reports by the Indenture Trustee........................................................27
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TABLE OF CONTENTS (CONT'D.)
PAGE
----
ARTICLE V REMEDIES OF THE INDENTURE TRUSTEE AND SECURITYHOLDERS UPON EVENT OF DEFAULT................28
SECTION 5.01 Events of Default.......................................................................28
SECTION 5.02 Payment of Debt Securities on Default; Suit Therefor....................................30
SECTION 5.03 Application of Moneys Collected by Indenture Trustee....................................31
SECTION 5.04 Proceedings by Securityholders..........................................................31
SECTION 5.05 Proceedings by Indenture Trustee........................................................32
SECTION 5.06 Remedies Cumulative and Continuing......................................................33
SECTION 5.07 Restoration of Rights and Remedies......................................................33
SECTION 5.08 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders..........33
SECTION 5.09 Notice of Defaults......................................................................34
SECTION 5.10 Undertaking to Pay Costs................................................................35
ARTICLE VI CONCERNING THE INDENTURE TRUSTEE...........................................................35
SECTION 6.01 Duties and Responsibilities of Indenture Trustee........................................35
SECTION 6.02 Reliance on Documents, Opinions, etc....................................................37
SECTION 6.03 No Responsibility for Recitals, etc.....................................................38
SECTION 6.04 Indenture Trustee, Authenticating Agent, Paying Agents, Transfer Agents and Registrar
May Own Debt Securities.................................................................38
SECTION 6.05 Moneys to be Held in Trust..............................................................38
SECTION 6.06 Compensation and Expenses of Indenture Trustee..........................................39
SECTION 6.07 Officers' Certificate as Evidence.......................................................39
SECTION 6.08 Conflicting Interest of Indenture Trustee...............................................40
SECTION 6.09 Eligibility of Indenture Trustee........................................................40
SECTION 6.10 Resignation or Removal of Indenture Trustee.............................................40
SECTION 6.11 Acceptance by Successor Indenture Trustee; Supplemental Indenture.......................42
SECTION 6.12 Succession by Merger, etc...............................................................42
SECTION 6.13 Limitation on Rights of Indenture Trustee as a Creditor.................................43
SECTION 6.14 Authenticating Agents...................................................................43
ARTICLE VII CONCERNING THE SECURITYHOLDERS.............................................................44
SECTION 7.01 Action by Securityholders...............................................................44
SECTION 7.02 Proof of Execution by Securityholders...................................................45
SECTION 7.03 Who Are Deemed Absolute Owners..........................................................45
SECTION 7.04 Debt Securities Owned by Company Deemed Not Outstanding.................................45
SECTION 7.05 Revocation of Consents; Future Holders Bound............................................46
ARTICLE VIII MEETINGS OF SECURITYHOLDERS................................................................46
SECTION 8.01 Purposes of Meetings....................................................................46
SECTION 8.02 Call of Meetings by Indenture Trustee...................................................47
SECTION 8.03 Call of Meetings by Company or Securityholders..........................................47
-ii-
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TABLE OF CONTENTS (CONT'D.)
PAGE
----
SECTION 8.04 Qualifications for Voting...............................................................47
SECTION 8.05 Regulations.............................................................................47
SECTION 8.06 Voting..................................................................................48
SECTION 8.07 Quorum; Actions.........................................................................48
ARTICLE IX AMENDMENTS.................................................................................49
SECTION 9.01 Supplemental Indentures without Consent of Securityholders..............................49
SECTION 9.02 Supplemental Indentures with Consent of Securityholders.................................51
SECTION 9.03 Compliance with Trust Indenture Act; Effect of Supplemental Indentures..................52
SECTION 9.04 Notation on Debt Securities.............................................................52
SECTION 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to Indenture Trustee...52
ARTICLE X REDEMPTION OF DEBT SECURITIES..............................................................52
SECTION 10.01 Optional Redemption.....................................................................52
SECTION 10.02 Special Event Redemption................................................................53
SECTION 10.03 Notice of Redemption; Selection of Debt Securities......................................53
SECTION 10.04 Payment of Debt Securities Called for Redemption........................................54
ARTICLE XI CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE................................54
SECTION 11.01 Company May Consolidate, etc., on Certain Terms.........................................54
SECTION 11.02 Successor Person to be Substituted for Company..........................................55
SECTION 11.03 Opinion of Counsel to be Given Indenture Trustee........................................55
ARTICLE XII SATISFACTION AND DISCHARGE OF INDENTURE....................................................55
SECTION 12.01 Discharge of Indenture..................................................................55
SECTION 12.02 Deposited Moneys to be Held in Trust by Indenture Trustee...............................56
SECTION 12.03 Paying Agent to Repay Moneys Held.......................................................56
SECTION 12.04 Return of Unclaimed Moneys..............................................................56
ARTICLE XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS............................57
SECTION 13.01 Indenture and Debt Securities Solely Corporate Obligations..............................57
ARTICLE XIV MISCELLANEOUS PROVISIONS...................................................................57
SECTION 14.01 Successors..............................................................................57
SECTION 14.02 Official Acts by Successor Company......................................................57
SECTION 14.03 Surrender of Company Powers.............................................................57
SECTION 14.04 Addresses for Notices, etc..............................................................58
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TABLE OF CONTENTS (CONT'D.)
PAGE
----
SECTION 14.05 Governing Law...........................................................................58
SECTION 14.06 Evidence of Compliance with Conditions Precedent........................................58
SECTION 14.07 Business Day Convention.................................................................59
SECTION 14.08 Trust Indenture Act to Control..........................................................59
SECTION 14.09 Table of Contents, Headings, etc........................................................59
SECTION 14.10 Execution in Counterparts...............................................................59
SECTION 14.11 Separability............................................................................59
SECTION 14.12 Assignment..............................................................................60
ARTICLE XV SUBORDINATION OF DEBT SECURITIES...........................................................60
SECTION 15.01 Agreement to Subordinate................................................................60
SECTION 15.02 Default on Senior Debt..................................................................60
SECTION 15.03 Liquidation; Dissolution; Bankruptcy....................................................61
SECTION 15.04 Subrogation.............................................................................62
SECTION 15.05 Indenture Trustee to Effectuate Subordination...........................................63
SECTION 15.06 Notice by the Company...................................................................63
SECTION 15.07 Rights of the Indenture Trustee; Holders of Senior Debt.................................64
SECTION 15.08 Subordination May Not Be Impaired.......................................................64
Exhibit A Form of Debt Security
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Tie Sheet of provisions of Trust Indenture Act of 1939 with Indenture dated as of March 19, 2004 between Dime Community Bancshares, Inc. and Wilmington Trust Company, as Indenture Trustee:
ACT SECTION INDENTURE
SECTION
310(a)(1) .......................................................................6.09
(a)(2) ...........................................................6.09, 6.10, 6.11
310(a)(3) ........................................................................N/A
(a)(4) ........................................................................N/A
310(a)(5) ...........................................................6.09, 6.10, 6.11
310(b) .......................................................................6.08
310(c) ........................................................................N/A
311(a) .......................................................................6.13
311(b) .......................................................................6.13
311(c) ........................................................................N/A
312(a) .........................................................4.01(a)and 4.02(a)
312(b) ....................................................................4.02(b)
312(c) ....................................................................4.02(c)
313(a) ....................................................................4.04(a)
313(b)(1) ....................................................................4.04(a)
313(b)(2) ....................................................................4.04(a)
313(c) ....................................................................4.04(a)
313(d) ....................................................................4.04(b)
314(a) .................................................................3.05, 4.03
314(b) ........................................................................N/A
314(c)(1) .............................................................6.07 and 14.06
314(c)(2) .............................................................6.07 and 14.06
314(c)(3) ........................................................................N/A
314(d) ........................................................................N/A
314(e) ................................................................6.07, 14.06
314(f) ........................................................................N/A
315(a)(c) and .......................................................................6.01
(d)
315(b) .......................................................................5.09
315(e) .......................................................................5.10
316(a)(1) .......................................................................5.08
316(a)(2) ........................................................................N/A
316(a) last sentence.....................................................................7.04
316(b) ....................................................................5.07 and 9.02
316(c) ....................................................................7.01 and 9.02
317(a) .......................................................................5.05
317(b) .......................................................................6.05
318 ......................................................................14.08
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THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED
THIS INDENTURE, dated as of March 19, 2004, between Dime Community Bancshares, Inc., a Delaware corporation (hereinafter called the "Company"), and Wilmington Trust Company, a Delaware banking corporation, as trustee (hereinafter sometimes called the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of its Fixed Rate Junior Subordinated Deferrable Interest Debt Securities due 2034 (the "Debt Securities") under this Indenture and to provide, among other things, for the execution and authentication, delivery and administration thereof, the Company has duly authorized the execution of this Indenture.
NOW, THEREFORE, in consideration of the premises, and the purchase of Debt Securities by the holders thereof, the Company covenants and agrees with the Indenture Trustee for the equal and proportionate benefit of the respective holders from time to time of the Debt Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any Indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which are by reference therein defined in the Securities Act of 1933, as amended (the "Securities Act"), shall (except as herein otherwise expressly provided or unless the context otherwise requires) have the meanings assigned to such terms in said Trust Indenture Act and in the Securities Act as in force at the date of this Indenture as originally executed. The following terms have the meanings given to them in the Declaration (as defined below): (i) Institutional Trustee; (ii) Delaware Trustee; (iii) Administrators; (iv) Distributions; and (v) Initial Purchaser. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term "generally accepted accounting principles" means such accounting principles as are generally accepted in the United States at the time of any computation. The words "herein," "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Headings are used for convenience of reference only and do not affect interpretation. The singular includes the plural and vice versa.
"Additional Amounts" has the meaning set forth in Section 3.06.
"Additional Provisions" has the meaning set forth in Section 15.01.
"Administrative Action" has the meaning specified within the definition of "Tax Event".
"Affiliate" shall have the meaning given to that term in Rule 405 under the Securities Act or any successor rule thereunder.
"Authenticating Agent" means any agent or agents of the Indenture Trustee which at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
"Board of Directors" means the board of directors or the executive committee or any other duly authorized committee of the Company's board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Indenture Trustee.
"Book-Entry Capital Securities" shall have the meaning set forth in
Section 2.06(a)(i).
"Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in Wilmington, Delaware or New York, New York are permitted or required by law, executive order or regulation to close.
"Capital Securities" means undivided beneficial interests in the assets of the Trust which are designated as "Capital Securities" and rank PARI PASSU with the Common Securities issued by the Trust; PROVIDED, HOWEVER, that if an Event of Default (as defined in the Declaration) has occurred and is continuing, the rights of holders of such Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights of the holders of the Capital Securities. References to "Capital Securities" shall include, collectively, any Series A Capital Securities and Series B Capital Securities (as such terms are defined in the Declaration).
"Capital Treatment Event" means the receipt by the Company and the Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of any amendment to, or change in, any laws, rules or regulations of the United States or any political subdivision thereof or therein or any rules, guidelines or policies of an applicable regulatory agency or authority, or as the result of any official or administrative pronouncement or action or judicial decision interpreting or applying such laws, rules or regulations, which amendment or change is effective or which pronouncement, action or judicial decision is announced on or after the date of original issuance of the Initial Securities, there is more than an insubstantial risk that the Company will not, within 90 days of the date of such opinion, be entitled to treat an amount equal to the aggregate Liquidation Amount of the Capital Securities as "Tier 1 Capital" (or its then equivalent) if the Company (or its successors) were subject to such capital requirement, applied as if the Company (or its successors) were a bank holding company for purposes of the capital adequacy guidelines of the Federal Reserve (or any successor regulatory authority with jurisdiction over bank holding companies), or any capital adequacy guidelines as then in effect and applicable to the Company; PROVIDED, HOWEVER, that the distribution of the Debt Securities in connection with a Dissolution Event shall not in and of itself constitute a Capital Treatment
Event unless such Dissolution Event shall have occurred in connection with a Tax Event or an Investment Company Event.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities" means undivided beneficial interests in the assets of the Trust which are designated as "Common Securities" and rank PARI PASSU with Capital Securities issued by the Trust; PROVIDED, HOWEVER, that if an Event of Default (as defined in the Declaration) has occurred and is continuing, the rights of holders of such Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights of holders of such Capital Securities.
"Company" means the person identified as "Company" in the preamble to this Indenture and, subject to the provisions of Article XI, shall also include its successors and assigns.
"Company Order" means a written request or order signed in the name of the Company by an officer and delivered to the Indenture Trustee.
"Custodian" means any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" means collectively, the Initial Securities and the Exchange Securities.
"Debt Security Register" means (i) prior to a Dissolution Event, the
list of holders provided to the Indenture Trustee pursuant to Section 4.01, and
(ii) following a Dissolution Event, any debt security register maintained by a
security registrar for the Debt Securities appointed by the Company following
the execution of a supplemental indenture providing for transfer procedures as
provided for in Section 2.09(a).
"Declaration" means the Amended and Restated Declaration of Trust of the Trust, dated as of March 19, 2004, by and among the Trustees (as defined therein), the Administrators, the Company, as sponsor, and the holders from time to time of undivided beneficial interest in the assets of the Trust, as amended or supplemented from time to time.
"Default" means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 2.07(c).
"Deferred Interest" has the meaning set forth in Section 2.08.
"Definitive Securities" means those Debt Securities issued in fully registered certificated form.
"Depositary" means, with respect to the Debt Securities which the Company determines shall be issued as a Global Security, The Depository Trust Company, New York, New York, or another clearing agency, or any successor registered as a clearing agency pursuant to Section 17A of the Exchange Act or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to Section 2.06(c).
"Dissolution Event" means any event resulting in the dissolution of the Trust pursuant to the Declaration, and the distribution of the Debt Securities held by the Indenture Trustee to the holders of the Trust Securities issued by the Trust PRO RATA in accordance with the Declaration.
"Event of Default" means any event specified in Section 5.01, which has continued for the period of time, if any, and after the giving of the notice, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation.
"Exchange Offer" means the offer that may be made pursuant to the Registration Rights Agreement (i) by the Company to exchange the Exchange Securities for the Initial Securities and to execute the Series B Guarantee in respect of the Series B Capital Securities and (ii) by the Trust to exchange the Series B Capital Securities for the Series A Capital Securities.
"Exchange Securities" means the Company's Fixed Rate Junior Subordinated Deferrable Interest Debt Securities due 2034, Series B, as authenticated and issued under this Indenture.
"Extension Period" has the meaning set forth in Section 2.08.
"Federal Reserve" means the Board of Governors of the Federal Reserve System.
"Global Security" means, with respect to the Debt Securities, a Debt Security executed by the Company and delivered by the Indenture Trustee to the Depositary or pursuant to the Depositary's instruction or, if no instructions are received, then held by the Indenture Trustee as custodian for the Depository, all in accordance with this Indenture, which Debt Security shall be registered in the name of the Depositary or its nominee.
"Guarantee" means any guarantee agreement that the Company will enter into with Wilmington Trust Company or any other Person that operates directly or indirectly for the benefit of holders of Capital Securities.
"Indenture" means this Indenture as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented, or both.
"Indenture Trustee" means the Person identified as "Indenture Trustee" in the preamble to this Indenture and, subject to the provisions of Article VI hereof, shall also include its successors and assigns.
"Initial Securities" means the Company's Fixed Rate Junior Subordinated Deferrable Interest Debt Securities due 2034, Series A, as authenticated and issued under this Indenture.
"Interest Payment Date" means January 15th, April 15th, July 15th, and October 15th of each year commencing on July 15, 2004 and the Maturity Date, an Optional Redemption Date or the Special Redemption Date, as applicable, subject to Section 14.07.
"Interest Period" has the meaning set forth in Section 2.07(b).
"Interest Rate" means a fixed rate per annum equal to 7.0%, plus the rate of any applicable Liquidated Damages.
"Investment Company" means an investment company as defined in the Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Company and the Trust of an Opinion of Counsel experienced in such matters to the effect that as a result of any amendment to, or change in, the laws, rules or regulations of the United States or any political subdivision thereof or therein, or as the result of any official or administrative pronouncement or action or judicial decision interpreting or applying such laws, rules or regulations, which amendment or change is effective or which pronouncement, action or decision is announced on or after the date of original issuance of the Initial Securities, there is more than an insubstantial risk that the Trust is, or within 90 days of the date of such opinion will be, considered an Investment Company that is required to be registered under the Investment Company Act.
"Like Amount" means (i) with respect to a redemption of the Trust Securities, Trust Securities having a Liquidation Amount equal to the principal amount of Debt Securities to be paid in accordance with their terms and (ii) with respect to a distribution of Debt Securities upon a Dissolution Event, Debt Securities having a principal amount equal to the Liquidation Amount of the Trust Securities of the holder to whom Debt Securities are distributed.
"Liquidated Damages" shall have the meaning set forth in the Registration Rights Agreement and the Liquidated Damages Agreement.
"Liquidated Damages Agreement" means the Liquidated Damages Agreement, dated as of March 12, 2004, by and among the Company, the Trust and the Initial Purchaser named therein, as such agreement may be amended, modified or supplemented from time to time.
"Liquidation Amount" means the liquidation amount of $1,000 per Trust Security.
"Maturity Date" means April 14, 2034.
"Non Book-Entry Capital Securities" shall have the meaning set forth in
Section 2.06(a)(ii).
"OTS" means the Office of Thrift Supervision or any successor regulatory agency.
"Officers' Certificate" means a certificate signed by the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President or any Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee. Each such certificate shall include the statements provided for in Section 14.06 if and to the extent required by the provisions of such Section.
"Opinion of Counsel" means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or may be other counsel reasonably acceptable to the Indenture Trustee. Each such opinion shall include the statements provided for in Section 14.06 if and to the extent required by the provisions of such Section.
"Optional Redemption Date" has the meaning set forth in Section 10.01.
"Optional Redemption Price" means an amount in cash equal to 100% of the principal amount of the Debt Securities to be redeemed, plus unpaid interest and Liquidated Damages, if any, accrued thereon to but excluding the related Optional Redemption Date.
"Paying Agent" has the meaning set forth in Section 3.04(a).
"Person" means any legal person, including any individual, corporation, estate, partnership, joint venture, national banking association, association, joint-stock company, limited liability company, trust, unincorporated association or government or any agency or political subdivision thereof or any other entity of whatever nature.
"Predecessor Securities" of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by such particular Debt Security; and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 2.10 in lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Debt Security.
"Principal Office of the Indenture Trustee," means the office of the Indenture Trustee, at which at any particular time its corporate trust business shall be principally administered, and at the time of the execution of this Indenture shall be, Rodney Square North, 1100 North Market Street, Wilmington, DE 19890-0001.
"Purchase Agreement" means the Purchase Agreement, dated March 12, 2004, by and among the Company, the Trust, The Dime Savings Bank of Williamsburgh and the Initial Purchaser named therein.
"Registration Rights Agreement" means the Registration Rights Agreement, dated as of March 12, 2004, by and among the Company, the Trust and the Initial Purchaser named therein, as such agreement may be amended, modified or supplemented from time to time.
"Regular Record Date" shall mean 15th calendar day prior to the applicable Interest Payment Date, whether or not such day is a Business Day.
"Resale Restriction Termination Date" means, with respect to any Debt
Security, the date which is the later of (i) two years (or such shorter period
of time as permitted by Rule 144(k) under the Securities Act) after the later of
(y) the date of original issuance of such Debt Security and (z) the last date on
which the Company or any Affiliate of the Company was the holder of such Debt
Security (or any predecessor thereto) and (ii) such later date, if any, as may
be required by any subsequent change in applicable law.
"Responsible Officer" means, with respect to the Indenture Trustee, any officer within the Principal Office of the Indenture Trustee with direct responsibility for the administration of the Indenture, including any vice-president, any assistant vice-president, any secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or other officer of the Principal Office of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject.
"Restricted Securities" means Debt Securities that bear or are required to bear the legends relating to transfer restrictions under the Securities Act set forth in Exhibit A hereto.
"Rule 144A" means Rule 144A under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission.
"Securityholder," "holder of Debt Securities," or other similar terms, means any Person in whose name at the time a particular Debt Security is registered in the Debt Security Register.
"Senior Debt" means, with respect to the Company, (i) the principal, premium, if any, and interest in respect of (A) indebtedness of the Company for money borrowed and (B) indebtedness evidenced by securities, debentures, notes, bonds or other similar instruments issued by the Company including, without limitation its 9.75% Subordinated Notes due May 1, 2010; (ii) all capital lease obligations of the Company; (iii) all obligations of the Company issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Company and all obligations of the Company under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business); (iv) all obligations of the Company for the reimbursement of any letter of credit, any banker's acceptance, any security purchase facility, any repurchase agreement or similar arrangement, any interest rate swap, any other hedging arrangement, any obligation under options or any similar credit or other transaction; (v) all obligations of the type referred to in clauses (i) through (iv) above of other Persons for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise; and (vi) all obligations of the type referred to in clauses (i) through (v) above of other Persons secured by any lien on any property or asset of the Company (whether or not such obligation is assumed by the Company), whether incurred on or prior to the date of this Indenture or thereafter incurred, unless, with the prior approval of the OTS (or such other bank regulatory authority that is then the primary holding company regulator of the Company) if not otherwise generally approved, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligations are not superior or are PARI PASSU in right of payment to the Debt Securities; PROVIDED, HOWEVER, that Senior Debt shall not include (A) any debt securities issued to any trust other than the Trust (or a trustee of such trust), partnership or
other entity affiliated with the Company that is a financing entity of the Company (a "financing entity"), in connection with the issuance by such financing entity of equity securities or other securities in transactions substantially similar in structure to the transactions contemplated hereunder and in the Declaration or (B) any guarantees of the Company in respect of the equity securities or other securities of any financing entity referred to in clause (A) above pursuant to an instrument that ranks PARI PASSU with in right of payment to the Guarantee.
"Series B Guarantee" means the Series B Guarantee of the Company to be entered into in connection with the Exchange Offer in respect of the Series B Capital Securities.
"Special Event" means any of an Investment Company Event, a Capital Treatment Event or a Tax Event, as the context requires.
"Special Redemption Date" has the meaning set forth in Section 10.02.
"Special Redemption Price" means, with respect to the redemption of any Debt Security following a Special Event, an amount in cash equal to the percentage of the principal amount of the Debt Securities that is specified below for the Special Redemption Date plus, in each case, unpaid interest and Liquidated Damages, if any, accrued thereon to but excluding the Special Redemption Date:
Special Redemption Price will be 103.5%
to but excluding April 15, 2005
and thereafter will be as follows for the
12-month period beginning April 15, Percentage of Principal Amount
----------------------------------- ------------------------------
2005 102.8%
2006 102.1%
2007 101.4%
2008 100.7%
2009 and thereafter 100%
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"Subsidiary" means with respect to any Person, (i) any corporation at least a majority of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint venture, limited liability company or similar entity, at least a majority of whose outstanding partnership, membership or similar interests shall at the time be owned by such Person or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner. For the purposes of this definition, "voting stock" means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of
such Person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
"Tax Event" means the receipt by the Company and the Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of any amendment to, clarification of or change (including any announced prospective change) in, the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein, or as a result of any official administrative pronouncement (including any private letter ruling, technical advice memorandum, regulatory procedure, notice or announcement (an "Administrative Action")) or judicial decision interpreting or applying such laws or regulations, regardless of whether such Administrative Action or judicial decision is issued to or in connection with a proceeding involving the Company or the Trust and whether or not subject to review or appeal, which amendment, clarification, change, Administrative Action or decision is enacted, promulgated or announced, in each case on or after the date of original issuance of the Initial Securities, there is more than an insubstantial risk that: (i) the Trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to income received or accrued on the Debt Securities; (ii) interest payable by the Company on the Debt Securities is not, or within 90 days of the date of such opinion, will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes; or (iii) the Trust is, or will be within 90 days of the date of such opinion, subject to or otherwise required to pay, or required to withhold from distributions to holders of Trust Securities, more than a DE MINIMIS amount of other taxes (including withholding taxes), duties, assessments or other governmental charges.
"Trust" means Dime Community Capital Trust I, a Delaware statutory trust created for the purpose of issuing its Capital Securities in connection with the issuance of Debt Securities under this Indenture of which the Company is the sponsor.
"Trust Securities" means, collectively, the Capital Securities and the Common Securities.
SECTION 1.02 BUSINESS DAY CERTIFICATE.
On the date of execution and delivery of this Indenture (with respect to the remainder of calendar year 2004) and within 15 days prior to the end of each calendar year while this Indenture remains in effect (with respect to succeeding calendar years), the Company shall deliver to the Indenture Trustee an Officers' Certificate specifying the days on which banking institutions or trust companies in New York, New York or Wilmington, Delaware are then authorized or obligated by law, executive order or regulation to remain closed.
ARTICLE II
DEBT SECURITIES
SECTION 2.01 AUTHENTICATION AND DATING.
Upon the execution and delivery of this Indenture, or from time to time thereafter, Debt Securities in an aggregate principal amount not in excess of $72,165,000 may be executed and delivered by the Company to the Indenture Trustee for authentication, and the Indenture Trustee shall thereupon authenticate and make available for delivery said Debt Securities to or upon the
written order of the Company, signed by its Chairman of the Board of Directors, Vice Chairman, President or Chief Financial Officer or one of its Vice Presidents, without any further action by the Company hereunder. In authenticating such Debt Securities, and accepting the additional responsibilities under this Indenture in relation to such Debt Securities, the Indenture Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon a copy of any Board Resolution or Board Resolutions relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, in each case certified by the Secretary or an Assistant Secretary or other officers with appropriate delegated authority of the Company as the case may be.
The Indenture Trustee shall have the right to decline to authenticate and deliver any Debt Securities under this Section if the Indenture Trustee, being advised by counsel, determines that such action may not lawfully be taken or if a Responsible Officer of the Indenture Trustee in good faith shall determine that such action would expose the Indenture Trustee to personal liability to existing Securityholders.
The definitive Debt Securities shall be typed, printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Debt Securities, as evidenced by their execution of such Debt Securities.
SECTION 2.02 FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Indenture Trustee's certificate of authentication on all Debt Securities shall be in substantially the following form:
This is one of the Debt Securities of the Company referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee
SECTION 2.03 FORM AND DENOMINATION OF DEBT SECURITIES.
The Debt Securities shall be substantially in the form of Exhibit A hereto and shall be issuable in minimum denominations of $100,000 and any multiple of $1,000 in excess thereof. The Debt Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the officers executing the same may determine with the approval of the Indenture Trustee as evidenced by the execution and authentication thereof.
SECTION 2.04 EXECUTION OF DEBT SECURITIES.
The Debt Securities shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chairman of the Board of Directors, Vice Chairman, President or Chief Financial Officer or one of its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents, under its corporate seal (if legally required) which may be affixed thereto or printed, engraved or otherwise reproduced thereon, by facsimile or otherwise, and which need not be attested. Only such Debt Securities as shall bear thereon a certificate of authentication substantially in the form herein before recited, executed by the Indenture Trustee or the Authenticating Agent by the manual signature of an authorized officer, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Indenture Trustee or the Authenticating Agent upon any Debt Security executed by the Company shall be conclusive evidence that the Debt Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Debt Securities shall cease to be such officer before the Debt Securities so signed shall have been authenticated and delivered by the Indenture Trustee or the Authenticating Agent, or disposed of by the Company, such Debt Securities nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Debt Securities had not ceased to be such officer of the Company; and any Debt Security may be signed on behalf of the Company by such Persons as, at the actual date of the execution of such Debt Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer.
Every Debt Security shall be dated the date of its authentication.
SECTION 2.05 LEGENDS.
(a) Except as permitted by subsection (b) of this Section 2.05, or as otherwise determined by the Company in accordance with applicable law, prior to the Resale Restriction Termination Date, each Debt Security shall bear the applicable legends relating to restrictions on transfer pursuant to the Securities Act and any other applicable securities laws in substantially the form set forth in Exhibit A hereto.
(b) In the event of an Exchange Offer, the Company shall issue and the Indenture Trustee, upon receipt of a Company Order to do so, shall authenticate Exchange Securities in exchange for Initial Securities accepted for exchange in the Exchange Offer, which Exchange Securities shall not bear the legends required by subsection (a) of this Section 2.05, in each case, as determined by the Company, unless the holder of such Initial Securities is either (A) a broker-dealer who purchased such Initial Securities directly from the Company for resale pursuant to Rule 144A or any other available exemption under the Securities Act, (B) a Person participating in the distribution of the Initial Securities or (C) a Person who is an Affiliate of the Company or the Trust.
SECTION 2.06 GLOBAL SECURITY.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-entry form ("Book-Entry Capital Securities"), the Company shall execute and deliver to the Indenture Trustee a Like Amount of Global Securities and, upon presentment to the Indenture Trustee of Definitive Securities by the Institutional Trustee under the Declaration and receipt by the Indenture Trustee of a Company Order to do so, the Indenture Trustee shall (1) authenticate such Global Securities to be registered in the name of the Depositary, or its nominee, for crediting to the accounts of the Depositary's participants representing the beneficial owners of the Book-Entry Capital Securities tendered for exchange pursuant to the instructions of the Administrators and (2) promptly cancel such Definite Securities; and
(ii) if any Capital Securities are held in certificated form ("Non-Book Entry Capital Securities"), the Company shall execute and deliver to the Indenture Trustee a Like Amount of Definitive Securities and, upon presentment to the Indenture Trustee of Definitive Securities by the Institutional Trustee under the Declaration and receipt by the Indenture Trustee of a Company Order to do so, the Indenture Trustee shall (1) authenticate a Like Amount of Definitive Securities to be registered in the name of, and delivered to, (A) each holder of Non-Book-Entry Capital Securities presented by the Institutional Trustee, as certified to the Indenture Trustee, or (B) the Indenture Trustee, if and to the extent not so certified by the Institutional Trustee and (2) promptly cancel all Definitive Securities presented to it by such Institutional Trustee. Definitive Securities registered in the name of the Indenture Trustee in accordance with the preceding sentence shall be deemed to be represented by the Non-Book-Entry Capital Securities that have not been presented to the Institutional Trustee for exchange.
(b) The Global Securities shall represent the aggregate amount of outstanding Debt Securities from time to time endorsed thereon; PROVIDED, HOWEVER, that the aggregate principal amount of outstanding Debt Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Security to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Debt Securities represented thereby shall be made by the Indenture Trustee, in accordance with instructions given by the Company pursuant to this Section 2.06.
(c) The Global Securities may be transferred, in whole but not in part, only to the Depositary, to another nominee of the Depositary, or to a successor Depositary selected or approved by the Company or to a nominee of such successor Depositary.
(d) If at any time the Depositary notifies the Company that it is unwilling or unable to continue as Depositary or the Depositary has ceased to be a clearing agency registered under the Exchange Act, and, in each case, a successor Depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, the Company will execute, and the Indenture Trustee, upon receipt of a Company Order to do so, will authenticate and make available for delivery the Definitive Securities, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security or Securities, as applicable, in exchange for such Global Security or Securities, as
applicable. If there is a Default or an Event of Default, the Depositary shall have the right to exchange the Global Security or Securities, as applicable, for Definitive Securities. In addition, at the Company's request, the Depositary may notify beneficial owners that they may request an exchange of their interests in a Global Security for Definitive Securities. In the event of such an Event of Default or such a request, the Company shall execute, and subject to Section 2.09, the Indenture Trustee, upon receipt of an Officers' Certificate evidencing such determination by the Company and a Company Order to do so, will authenticate and make available for delivery the Definitive Securities, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security or Securities, as applicable, in exchange for such Global Security or Securities, as applicable. Upon the exchange of a Global Security for Definitive Securities, such Global Security, shall be canceled by the Indenture Trustee. Such Definitive Securities issued in exchange for the Global Security or Securities, as applicable shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Indenture Trustee. The Indenture Trustee shall deliver such Definitive Securities to the Depositary for delivery to the Persons in whose names such Definitive Securities are so registered.
SECTION 2.07 COMPUTATION OF INTEREST.
(a) The amount of interest payable for any Interest Period will be computed on the basis of a 360-day year consisting of twelve 30-day months.
(b) Each Debt Security will bear interest at the Interest Rate (i) in
the case of the initial Interest Period, for the period from, and including, the
date of original issuance of such Debt Security to, but excluding, the initial
Interest Payment Date and (ii) thereafter, for the period from, and including,
the first day following the end of the preceding Interest Period to, but
excluding, the applicable Interest Payment Date or, in the case of the last
Interest Period, the related Optional Redemption Date, Special Redemption Date
or Maturity Date, as applicable (each such period, an "Interest Period"), on the
principal thereof, on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on Deferred Interest and on
any overdue installment of interest (including Defaulted Interest), payable
(subject to the provisions of Article XII) on each Interest Payment Date.
Interest and any Deferred Interest on any Debt Security that is payable, and is
punctually paid or duly provided for by the Company, on any Interest Payment
Date shall be paid to the Person in whose name such Debt Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest installment, except that interest and any
Deferred Interest payable on the Maturity Date, any Optional Redemption Date or
the Special Redemption Date, as the case may be, shall be paid to the Person to
whom principal is paid. In case (i) the Maturity Date of any Debt Security or
(ii) any Debt Security or portion thereof is called for redemption and the
related Optional Redemption Date or the Special Redemption Date, as the case may
be, is subsequent to the Regular Record Date with respect to any Interest
Payment Date and either on or prior to such Interest Payment Date, interest on
such Debt Security will be paid upon presentation and surrender of such Debt
Security.
(c) Any interest on any Debt Security, other than Deferred Interest, that is payable, but is not punctually paid or duly provided for by the Company, on any Interest Payment Date other than the Maturity Date, an Optional Redemption Date or the Special Redemption Date, as
applicable (herein called "Defaulted Interest") shall forthwith cease to be payable to the holder on the relevant Regular Record Date by virtue of having been such holder, and such Defaulted Interest shall be paid by the Company to the Persons in whose names such Debt Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Indenture Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Debt Security and the date of the proposed payment, and at the same time the Company shall deposit with the Indenture Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to the Indenture Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this paragraph. Thereupon the Indenture Trustee shall fix a special record date for the payment of such Defaulted Interest, which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Indenture Trustee of the notice of the proposed payment. The Indenture Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Debt Security Register, not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Debt Securities (or their respective Predecessor Securities) are registered on such special record date and thereafter the Company shall have no further payment obligation in respect of the Defaulted Interest.
(d) Any interest scheduled to become payable on an Interest Payment Date occurring during an Extension Period shall not be Defaulted Interest and shall be payable on such other date as may be specified in the terms of such Debt Securities.
(e) Subject to the foregoing provisions of this Section 2.07, each Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Debt Security.
SECTION 2.08 EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default has occurred and is continuing, the Company shall have the right, from time to time and without causing an Event of Default, to defer payments of interest on the Debt Securities by extending the interest payment period on the Debt Securities at any time and from time to time during the term of the Debt Securities, for up to 20 consecutive quarterly periods (each such extended interest payment period, together with all previous and further consecutive extensions thereof, is referred to herein as an "Extension Period"). No Extension Period may end on a date other than an Interest Payment Date or extend beyond the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be. During any Extension Period, interest will continue to accrue on the Debt Securities, and interest on such accrued interest (such accrued interest and interest thereon referred to herein as "Deferred Interest") will accrue at an annual rate equal to the Interest Rate, compounded
quarterly from the date such Deferred Interest would have been payable were it not for the Extension Period, to the extent permitted by applicable law. No interest or Deferred Interest (except any Additional Amounts that may be due and payable) shall be due and payable during an Extension Period, except at the end thereof. At the end of any Extension Period, the Company shall pay all Deferred Interest then accrued and unpaid on the Debt Securities; PROVIDED, HOWEVER, that during any Extension Period, the Company shall be subject to the restrictions set forth in Section 3.08. Prior to the termination of any Extension Period, the Company may further extend such Extension Period, PROVIDED, THAT no Extension Period (including all previous and further consecutive extensions that are part of such Extension Period) shall exceed 20 consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of all Deferred Interest, the Company may commence a new Extension Period, subject to the foregoing requirements. The Company must give the Indenture Trustee notice of its election to begin or extend an Extension Period at least one Business Day prior to the Regular Record Date applicable to the next Interest Payment Date. The Indenture Trustee shall give notice of the Company's election to begin or extend an Extension Period to the Securityholders.
SECTION 2.09 TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept, at the office or agency maintained for the purpose of registration of transfer and for exchange, as provided in Section 3.02, the Debt Security Register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration and transfer of all Debt Securities as provided in this Article II. The Debt Security Register shall be in written form or in any other form capable of being converted into written form within a reasonable time.
Debt Securities to be exchanged may be surrendered at the Principal
Office of the Indenture Trustee or at any office or agency to be maintained by
the Company for such purpose as provided in Section 3.02, and the Company shall
execute, the Company or the Indenture Trustee shall register and the Indenture
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in exchange therefor, the Debt Security or Debt Securities which the
Securityholder making the exchange shall be entitled to receive. Upon due
presentment for registration of transfer of any Debt Security at the Principal
Office of the Trustee or at any office or agency of the Company maintained for
such purpose as provided in Section 3.02, the Company shall execute, the Company
or the Indenture Trustee shall register and the Indenture Trustee or the
Authenticating Agent shall authenticate and make available for delivery in the
name of the transferee or transferees, a new Debt Security for a like aggregate
principal amount. Registration or registration of transfer of any Debt Security
by the Indenture Trustee or by any agent of the Company appointed pursuant to
Section 3.02, and delivery of such Debt Security, shall be deemed to complete
the registration or registration of transfer of such Debt Security.
All Debt Securities presented for registration of transfer or for exchange or payment shall (if so required by the Company or the Indenture Trustee or the Authenticating Agent) be duly endorsed by, or be accompanied by, a written instrument or instruments of transfer in form satisfactory to the Company and either the Indenture Trustee or the Authenticating Agent duly executed by, the holder or such holder's attorney duly authorized in writing.
(b) (i) Prior to the Resale Restriction Termination Date, the Initial
Securities, and those Exchange Securities with respect to which any Person
described in Section 2.05(b)(A), (B) or (C) is the beneficial owner may not be
transferred except in compliance with the legend contained in Exhibit A unless
otherwise determined by the Company in accordance with applicable law. Upon any
distribution of the Debt Securities following a Dissolution Event, the Company
and the Indenture Trustee shall enter into a supplemental indenture pursuant to
Section 9.01 to provide for the transfer restrictions and procedures with
respect to the Debt Securities substantially similar to those contained in the
Declaration to the extent applicable in the circumstances existing at such time.
(ii) The Debt Securities will be issued and may be transferred only in minimum denominations of $100,000 and multiples of $1,000 in excess thereof. Any attempted transfer of the Debt Securities in unauthorized denominations shall be deemed to be void and of no legal effect whatsoever. Any such purported transferee shall be deemed not to be a holder of such Debt Securities for any purpose, including, but not limited to, the receipt of payments on such Debt Securities, and such purported transferee shall be deemed to have no interest whatsoever in such Debt Securities.
(c) To permit registrations of transfers and exchanges, the Company shall execute and the Indenture Trustee, upon receipt of a Company Order to do so, shall authenticate and deliver Definitive Securities and Global Securities at the request of the security registrar for the Debt Securities. All Definitive Securities and Global Securities issued upon any registration of transfer or exchange of Definitive Securities or Global Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Definitive Securities or Global Securities surrendered upon such registration of transfer or exchange.
Holders shall not be obligated to pay any service charge for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith, other than exchanges of Debt Securities pursuant to
Section 2.11, 9.04 or 10.04 not involving any transfer.
The Company shall not be required to: (i) issue, register the transfer of or exchange Debt Securities during a period beginning at the opening of business 15 calendar days before the day of mailing of a notice of redemption under Article X hereof and ending at the close of business on the day of such mailing; or (ii) register the transfer of or exchange any Debt Security so selected for redemption in whole or in part, except the nonredeemed portion of any Debt Security being redeemed in part.
Prior to due presentment for the registration of a transfer of any Debt Security, the Indenture Trustee, the Company and any agent of the Indenture Trustee or the Company may deem and treat the Person in whose name any Debt Security is registered as the absolute owner and holder of such Debt Security for the purpose of receiving payment of principal of and premium, if any, and interest on such Debt Security and Liquidated Damages, if any, and none of the Indenture Trustee, the Company or any agents of the Indenture Trustee or the Company shall be affected by notice to the contrary.
(d) The Initial Securities may be exchanged for Exchange Securities pursuant to the terms of the Exchange Offer. The Indenture Trustee shall make the exchange as follows:
The Company shall present the Indenture Trustee with an Officers' Certificate certifying the following:
(A) upon issuance of the Exchange Securities, the transactions contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of Initial Securities properly tendered in the Exchange Offer that are represented by a Global Security, the principal amount of Initial Securities properly tendered in the Exchange Offer that are represented by Definitive Securities, the name of each holder of such Definitive Securities and its principal amount and the name and address to which Definitive Securities representing Exchange Securities shall be registered and sent for each such holder.
The Indenture Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Exchange Securities have
been registered under Section 5 of the Securities Act and the Indenture has been
qualified under the Trust Indenture Act and (y) with respect to the matters set
forth in Section 3(q) of the Registration Rights Agreement and (iii) a Company
Order to do so, shall authenticate (A) a Global Security representing Exchange
Securities in aggregate principal amount equal to the aggregate principal amount
of Initial Securities represented by a Global Security indicated in such
Officers' Certificate as having been properly tendered and (B) Definitive
Securities representing Exchange Securities in aggregate principal amount equal
to the aggregate principal amount of Initial Securities represented by
Definitive Securities registered in the names and in the respective principal
amounts indicated in such Officers' Certificate.
Upon any properly tendered and accepted Initial Securities in the Exchange Offer that are represented by a Global Security, the Indenture Trustee shall make an endorsement on such Global Security for Initial Securities indicating a reduction in the principal amount represented thereby.
The Indenture Trustee shall deliver such Definitive Securities representing Exchange Securities to the holders thereof as indicated in such Officers' Certificate.
SECTION 2.10 MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES.
In case any Debt Security shall become mutilated or be destroyed, lost or stolen, the Company shall execute, and upon receipt of a Company Order to do so the Indenture Trustee shall authenticate and deliver, a new Debt Security bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Debt Security, or in lieu of and in substitution for the Debt Security so destroyed, lost or stolen. In every case the applicant for a substituted Debt Security shall furnish to the Company and the Indenture Trustee such security or indemnity as may be reasonably required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the
Indenture Trustee evidence to their reasonable satisfaction of the destruction, loss or theft of such Debt Security and of the ownership thereof.
The Indenture Trustee may authenticate any such substituted Debt Security and deliver the same upon receipt of a Company Order to do so. Upon the issuance of any substituted Debt Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Debt Security which has matured or is about to mature or has been called for redemption in full shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Debt Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish to the Company and the Indenture Trustee such security or indemnity as may be reasonably required by them to save each of them harmless and, in case of destruction, loss or theft, evidence reasonably satisfactory to the Company and to the Indenture Trustee of the destruction, loss or theft of such Debt Security and of the ownership thereof.
Every substituted Debt Security issued pursuant to the provisions of this Section 2.10 by virtue of the fact that any such Debt Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Debt Securities duly issued hereunder. All Debt Securities shall be held and owned upon the express condition that, to the extent permitted by applicable law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
SECTION 2.11 TEMPORARY SECURITIES.
Pending the preparation of Definitive Securities, the Company may execute, and upon receipt of a Company Order to do so, the Indenture Trustee shall authenticate and make available for delivery, temporary Debt Securities that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any authorized denomination, substantially of the tenor of the Definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the proper officers of the Company executing such Debt Securities may determine, as conclusively evidenced by their execution of such Debt Securities.
If temporary Debt Securities are issued, the Company shall cause Definitive Securities to be prepared without unreasonable delay. The Definitive Securities shall be printed, lithographed or engraved, or provided by any combination thereof, or in any other manner permitted by the rules and regulations of any applicable securities exchange, all as determined by the proper officers of the Company executing such Definitive Securities. After the preparation of Definitive Securities, the temporary Debt Securities shall be exchangeable for Definitive Securities upon surrender of the temporary Debt Securities at the office or agency maintained by the Company for such purpose pursuant to Section 3.02, without charge to the holder thereof. Upon surrender
for cancellation of any one or more temporary Debt Securities, the Company shall execute, and the Indenture Trustee, upon receipt of a Company Order to do so, shall authenticate and make available for delivery, in exchange therefor the same aggregate principal amount of Definitive Securities in any authorized denomination. Until so exchanged, the temporary Debt Securities shall in all respects be entitled to the same benefits under this Indenture as Definitive Securities.
SECTION 2.12 CANCELLATION.
All Debt Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer, shall, if surrendered to the Company or any Paying Agent, be surrendered to the Indenture Trustee and promptly canceled by it, or, if surrendered to the Indenture Trustee or any Authenticating Agent, shall be promptly canceled by it, and no Debt Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. All Debt Securities canceled by any Authenticating Agent shall be delivered to the Indenture Trustee. The Indenture Trustee shall destroy all canceled Debt Securities unless the Company otherwise directs the Indenture Trustee in writing, in which case the Indenture Trustee shall dispose of such Debt Securities as directed by the Company. If the Company shall acquire any of the Debt Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Debt Securities unless and until the same are surrendered to the Indenture Trustee for cancellation.
SECTION 2.13 CUSIP NUMBERS.
The Company in issuing the Debt Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Indenture Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Securityholders; PROVIDED, HOWEVER, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Debt Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Debt Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Indenture Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01 PAYMENT OF PRINCIPAL AND INTEREST: AGREED TREATMENT OF THE DEBT SECURITIES.
(a) The Company covenants and agrees that it will duly and punctually pay or cause to be paid all payments due in respect of the Debt Securities at the place, at the respective times and in the manner provided in this Indenture and the Debt Securities, including, without limitation, Liquidated Damages, if any, on the dates and in the manner required under the Registration Rights Agreement or the Liquidated Damages Agreement. Payment of the principal of and premium, if any, and interest and Liquidated Damages, if any, on the Debt Securities due on the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be, will be made by the Company in immediately available funds against presentation and surrender of such Debt Securities. At the option of the Company, each installment of
interest and Liquidated Damages, if any, on the Debt Securities due on an Interest Payment Date other than the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be, may be paid (i) by mailing checks for such interest payable to the order of the holders of Debt Securities entitled thereto as they appear on the Debt Security Register or (ii) by wire transfer of immediately available funds to any account with a banking institution located in the United States designated by such holders to the Paying Agent no later than the related record date. Notwithstanding anything to the contrary contained in this Indenture or any Debt Security, all payments in respect of the particular Debt Security shall be made by the Company in immediately available funds when due for any Definitive Security that is held by the Trust or the Institutional Trustee of the Trust or for any Global Security.
(b) The Company will treat the Debt Securities as indebtedness, and the interest payable in respect of such Debt Securities as interest, for all U.S. federal income tax purposes. All payments in respect of such Debt Securities will be made free and clear of U.S. withholding tax to any beneficial owner thereof that has provided an Internal Revenue Service Form W-8 BEN (or any substitute or successor form) establishing its non-U.S. status for U.S. federal income tax purposes.
(c) As of the date of this Indenture, the Company represents that it has no intention to exercise its right under Section 2.08 to defer payments of interest on the Debt Securities by commencing an Extension Period.
(d) As of the date of this Indenture, the Company represents that the likelihood that it would exercise its right under Section 2.08 to defer payments of interest on the Debt Securities by commencing an Extension Period at any time during which the Debt Securities are outstanding is remote because of the restrictions that would be imposed on the Company's ability to declare or pay dividends or distributions on, or to redeem, purchase or make a liquidation payment with respect to, any of its outstanding equity and on the Company's ability to make any payments of principal of or premium, if any, or interest or Liquidated Damages, if any, on or, repurchase or redeem, any of its debt securities that rank PARI PASSU in all respects with or junior in interest to the Debt Securities.
SECTION 3.02 OFFICES FOR NOTICES AND PAYMENTS, ETC.
So long as any of the Debt Securities remain outstanding, the Company will maintain in Wilmington, Delaware or in New York, New York an office or agency where the Debt Securities may be presented for payment, an office or agency where the Debt Securities may be presented for registration of transfer and for exchange as provided in this Indenture and an office or agency where notices and demands to or upon the Company in respect of the Debt Securities or of this Indenture may be served. The Company will give to the Indenture Trustee written notice of the location of any such office or agency and of any change of location thereof. Until otherwise designated from time to time by the Company in a notice to the Indenture Trustee, or specified as contemplated by Section 2.09, such office or agency for all of the above purposes shall be the Principal Office of the Indenture Trustee. In case the Company shall fail to maintain any such office or agency in Wilmington, Delaware or in New York, New York, or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Principal Office of the Indenture Trustee.
In addition to any such office or agency, the Company may from time to time designate one or more offices or agencies outside Wilmington, Delaware or New York, New York where the Debt Securities may be presented for registration of transfer and for exchange in the manner provided in this Indenture, and the Company may from time to time rescind such designation, as the Company may deem desirable or expedient; PROVIDED, HOWEVER, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain any such office or agency in Wilmington, Delaware or in New York, New York for the purposes above mentioned. The Company will give to the Indenture Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.03 APPOINTMENTS TO FILL VACANCIES IN INDENTURE TRUSTEE'S OFFICE.
The Company, whenever necessary to avoid or fill a vacancy in the office of Indenture Trustee, will appoint, in the manner provided in Section 6.10, a Indenture Trustee, so that there shall at all times be a Indenture Trustee hereunder.
SECTION 3.04 PROVISION AS TO PAYING AGENT.
(a) The Company hereby initially appoints the Indenture Trustee to act as Paying Agent for the Debt Securities (the "Paying Agent"). If the Company shall appoint a Paying Agent other than the Indenture Trustee with respect to the Debt Securities, it will cause such Paying Agent to execute and deliver to the Indenture Trustee an instrument in which such agent shall agree with the Indenture Trustee, subject to the provisions of this Section 3.04,
(1) that it will hold all sums held by it as such agent for the payment of all payments due on the Debt Securities (whether such sums have been paid to it by the Company or by any other obligor on the Debt Securities) in trust for the benefit of the holders of the Debt Securities;
(2) that it will give the Indenture Trustee prompt written notice of any failure by the Company (or by any other obligor on the Debt Securities) to make any payment on the Debt Securities when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any Event of Default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent.
(b) If the Company shall act as its own Paying Agent, it will, on or before each due date of the payments due on the Debt Securities, set aside, segregate and hold in trust for the benefit of the holders of the Debt Securities a sum sufficient to make such payments so becoming due and will notify the Indenture Trustee in writing of any failure to take such action and of any failure by the Company (or by any other obligor under the Debt Securities) to make any payment on the Debt Securities when the same shall become due and payable.
Whenever the Company shall have one or more Paying Agents for the Debt Securities, it will, on or prior to each due date of the payments on the Debt Securities, deposit with a Paying Agent a sum sufficient to pay all payments so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto and (unless such Paying Agent is the Indenture Trustee) the Company shall promptly notify the Indenture Trustee in writing of its action or failure to act.
(c) Anything in this Section 3.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to the Debt Securities hereunder, or for any other reason, pay or direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Indenture Trustee upon the same terms and conditions herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.04 is subject to Sections 12.03 and 12.04.
SECTION 3.05 CERTIFICATE TO INDENTURE TRUSTEE.
The Company will deliver to the Indenture Trustee on or before 120 days after the end of each fiscal year of the Company, commencing with the first fiscal year ending after the date hereof, so long as Debt Securities are outstanding hereunder, an Officers' Certificate, stating that in the course of the performance by the signers of their duties as officers of the Company they would normally have knowledge of any default by the Company in the performance of any covenants of the Company contained herein, stating whether or not they have knowledge of any such default and, if so, specifying each such default of which the signers have knowledge and the nature thereof.
SECTION 3.06 ADDITIONAL AMOUNTS.
If and for so long as the Trust is the holder of all Debt Securities and is subject to or otherwise required to pay (or is required to withhold from distributions to holders of Trust Securities) any additional taxes (including withholding taxes), duties, assessments or other governmental charges as a result of a Tax Event, the Company will pay such additional amounts (the "Additional Amounts") on the Debt Securities or the Trust Securities, as the case may be, as shall be required so that the net amounts received and retained by the holders of Debt Securities or Trust Securities, as the case may be, after payment of all taxes (including withholding taxes), duties, assessments or other governmental charges, will be equal to the amounts that such holders would have received and retained had no such taxes (including withholding taxes), duties, assessments or other governmental charges been imposed.
Whenever in this Indenture or the Debt Securities there is a reference
in any context to the payment of principal of or premium, if any, or interest
and Liquidated Damages, if any, on the Debt Securities such mention shall be
deemed to include mention of payments of the Additional Amounts provided for in
this Section 3.06 to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section 3.06 and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made, PROVIDED, HOWEVER, that, notwithstanding anything to the contrary
contained in this Indenture or any Debt Security, the deferral of the payment of
interest during an Extension Period pursuant to Section 2.08 shall not defer the
payment of any Additional Amounts that may be due and payable.
SECTION 3.07 COMPLIANCE WITH CONSOLIDATION PROVISIONS.
The Company will not, while any of the Debt Securities remain outstanding, consolidate with, or merge into any other Person, or merge into itself, or sell, convey, transfer or otherwise dispose of all or substantially all of its property and assets to any other Person unless the provisions of Article XI hereof are complied with.
SECTION 3.08 LIMITATION ON DIVIDENDS.
If (i) there shall have occurred and be continuing a Default or an Event of Default, (ii) the Company shall be in default with respect to its payment of any obligations under the Guarantee or (iii) the Company shall have given notice of its election to defer payments of interest on the Debt Securities by extending the interest payment period as provided in Section 2.08 and such period, or any extension thereof, shall have commenced and be continuing, then the Company may not (A) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Company's capital stock, (B) make any payment of principal of or premium, if any, or interest or Liquidated Damages, if any, on or repay, repurchase or redeem any debt securities of the Company that rank PARI PASSU or junior in interest in all respects with the Debt Securities or (C) make any payment under any guarantees of the Company that rank PARI PASSU or junior in interest in all respects with the Guarantee (other than (a) repurchases, redemptions or other acquisitions of shares of capital stock of the Company (I) in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors or consultants, (II) in connection with a dividend reinvestment or stockholder stock purchase plan or (III) in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the occurrence of (i), (ii) or (iii) above, (b) as a result of any exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (c) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (d) any declaration of a dividend in connection with any stockholder's rights plan, or the issuance of rights, stock or other property under any stockholder's rights plan, or the redemption or repurchase of rights pursuant thereto or (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks PARI PASSU with or junior in interest to such stock).
SECTION 3.09 COVENANTS AS TO DIME COMMUNITY CAPITAL TRUST I.
For so long as such Trust Securities remain outstanding, the Company
(i) will maintain 100% direct or indirect ownership of the Common Securities of
the Trust; PROVIDED, HOWEVER, that any successor of the Company, permitted
pursuant to Article XI, may succeed to the Company's ownership of such Common
Securities, (ii) will use commercially reasonable efforts to cause the Trust (a)
to remain a statutory trust, except in connection with a distribution of Debt
Securities to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of
the Trust Securities, or mergers, consolidations or amalgamations, each as permitted by the Declaration and (b) to otherwise continue to be classified as a grantor trust for United States federal income tax purposes and (iii) will use commercially reasonable efforts to cause each holder of the Trust Securities to be treated as owning an undivided beneficial interest in the Debt Securities.
SECTION 3.10 PAYMENT OF EXPENSES.
In connection with the offering, sale and issuance of the Debt Securities to the Trust and in connection with the sale of the Trust Securities by the Trust, the Company, in its capacity as borrower with respect to the Debt Securities, shall:
(a) pay, or cause to be paid on its behalf, all costs and expenses relating to the offering, sale and issuance of the Debt Securities, including fees and expenses in connection with any Exchange Offer, filing of a shelf registration statement or other action to be taken pursuant to the Registration Rights Agreement and Liquidated Damages Agreement and compensation of the Indenture Trustee in accordance with the provisions of Section 6.06;
(b) pay, or cause to be paid on its behalf, all costs and expenses of the Trust, including, but not limited to, costs and expenses relating to the organization of the Trust, the offering, sale and issuance of the Trust Securities (including commissions payable to the Initial Purchaser pursuant to the Purchase Agreement in connection therewith), the fees and expenses of the Indenture Trustee and the Delaware Trustee, the costs and expenses relating to the operation of the Trust, including without limitation, costs and expenses of accountants, attorneys, statistical or bookkeeping services, expenses for printing and engraving and computing or accounting equipment, Paying Agent(s), registrar(s), transfer agent(s), duplicating, travel and telephone and other telecommunications expenses and costs and expenses incurred in connection with the acquisition, financing, and disposition of assets of the Trust;
(c) be primarily and fully liable for any indemnification obligations arising with respect to the Declaration, this Indenture and the Guarantee;
(d) pay any and all taxes (other than United States withholding taxes attributable to the Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the Trust; and
(e) pay all other fees, expenses, debts and obligations
(other than in respect of the Trust Securities)
related to the Trust.
SECTION 3.11 PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this Indenture or the removal or resignation of the Indenture Trustee, unless otherwise stated, the Company shall pay to the Indenture Trustee all amounts accrued and
owing to the Indenture Trustee to the date of such termination, removal or resignation. Upon termination of the Declaration or the removal or resignation of the Delaware Trustee or the Institutional Trustee under the Declaration, as the case may be, pursuant to Section 5.7 of the Declaration, the Company shall pay to the Delaware Trustee or the Institutional Trustee, as the case may be, all amounts accrued and owing to such trustee(s) to the date of such termination, removal or resignation.
ARTICLE IV
LIST OF SECURITYHOLDERS AND REPORTS BY THE
COMPANY AND THE INDENTURE TRUSTEE
SECTION 4.01 LIST OF SECURITYHOLDERS.
The Company covenants and agrees that it will furnish or cause to be furnished to the Indenture Trustee:
(a) on each Regular Record Date for an Interest Payment Date, a list, in such form as the Indenture Trustee may reasonably require, of the names and addresses of the Securityholders of the Debt Securities as of such record date; and
(b) at such other times as the Indenture Trustee may request in writing, within 30 days after the receipt by the Company, of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
except that, no such lists need be furnished so long as the Indenture Trustee is in possession thereof by reason of its acting as Debt Securities registrar.
SECTION 4.02 PRESERVATION AND DISCLOSURE OF LISTS.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders of the Debt Securities (i) contained in the most recent list furnished to it as provided in Section 4.01 or (ii) received by it in the capacity of Debt Securities registrar (if so acting) hereunder. The Indenture Trustee may destroy any list furnished to it as provided in Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Debt Securities (hereinafter referred to as "applicants") apply in writing to the Indenture Trustee and furnish to the Indenture Trustee reasonable proof that each such applicant has owned a Debt Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other holders of Debt Securities or with holders of all Debt Securities with respect to their rights under this Indenture and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Indenture Trustee shall, within five Business Days after the receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved at the time by the Indenture Trustee in accordance with the provisions of subsection (a) of this Section 4.02, or
(2) inform such applicants as to the approximate number of holders of all Debt Securities whose names and addresses appear in the information preserved at the time by the Indenture Trustee in accordance with the provisions of subsection (a) of this Section 4.02, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application.
If the Indenture Trustee shall elect not to afford such applicants
access to such information, the Indenture Trustee shall, upon the written
request of such applicants, mail to each Securityholder of Debt Securities whose
name and address appear in the information preserved at the time by the
Indenture Trustee in accordance with the provisions of subsection (a) of this
Section 4.02 a copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a tender to the
Indenture Trustee of the material to be mailed and of payment, or provision for
the payment, of the reasonable expenses of mailing, unless within five Business
Days after such tender, the Indenture Trustee shall mail to such applicants and
file with the Commission, if permitted or required by applicable law, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Indenture Trustee, such mailing would be contrary to
the best interests of the holders of all Debt Securities or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission as permitted or required by applicable law,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Indenture Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Indenture Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Debt Securities, by receiving and holding the same, agrees with the Company and the Indenture Trustee that none of the Company, the Indenture Trustee or any Paying Agent shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the holders of Debt Securities in accordance with the provisions of subsection (b) of this Section 4.02, regardless of the source from which such information was derived, and that the Indenture Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b).
SECTION 4.03 REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the Indenture Trustee, within 15 days after the date on which the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as said Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to provide to the Indenture Trustee, such of the supplementary and periodic information, documents and reports which would have been required pursuant to Section 13 of the Exchange Act in respect of a debt security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. The Company also covenants and agrees to comply with the provisions of Section 314(a) of the Trust Indenture Act.
(b) The Company covenants and agrees to file with the Indenture Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by said Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all holders
of Debt Securities, as the names and addresses of such holders appear upon the
Debt Security Register, within 30 days after the filing thereof with the
Indenture Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of this
Section 4.03 as may be required by rules and regulations prescribed from time to
time by the Commission.
(d) Delivery of such reports, information and documents to the Indenture Trustee is for informational purposes only and the Indenture Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officers' Certificates).
(e) So long as is required for an offer or sale of the Debt Securities
to qualify for an exemption under Rule 144A under the Securities Act, the
Company shall, upon request, provide the information required by clause (d)(4)
thereunder to each Securityholder and to each beneficial owner and prospective
purchaser of Debt Securities identified by each Securityholder of Restricted
Securities, unless such information is furnished to the Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
SECTION 4.04 REPORTS BY THE INDENTURE TRUSTEE.
(a) The Indenture Trustee shall transmit to Securityholders such reports concerning the Indenture Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Indenture Trustee shall, within 60 days after the date hereof, and no later than the anniversary date hereof in each succeeding year, deliver to Securityholders a brief report, dated as of each such date, which complies with the provisions of such Section 313(a).
(b) A copy of each report transmitted to Securityholders shall, at the time of such transmission, be filed by the Indenture Trustee with each stock exchange, if any, upon which the
Debt Securities are listed, with the Commission and with the Company. The Company will promptly notify the Indenture Trustee when the Debt Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE INDENTURE TRUSTEE AND
SECURITYHOLDERS UPON EVENT OF DEFAULT
SECTION 5.01 EVENTS OF DEFAULT.
The following events shall be "Events of Default" with respect to the Debt Securities:
(a) the Company defaults in the payment of any interest or Liquidated
Damages, if any, on any Debt Security when it becomes due and payable, and
continuance of such default for a period of 30 days; for the avoidance of doubt,
an extension of any interest payment period by the Company in accordance with
Section 2.08 of this Indenture shall not constitute a default under this clause
5.01(a); or
(b) the Company defaults in the payment of all or any part of the principal of (or premium, if any, on) any Debt Securities as and when the same shall become due and payable, whether at maturity, upon redemption, by acceleration of maturity pursuant to this Section 5.01 or otherwise; or
(c) the Company defaults in the performance of, or breaches, any of its covenants or agreements in Sections 3.06, 3.07, 3.08 or 3.09 of this Indenture (other than a covenant or agreement a default in whose performance or whose breach is elsewhere in this Section 5.01 specifically dealt with), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Indenture Trustee or to the Company and the Indenture Trustee by the holders of not less than 25% in aggregate principal amount of the outstanding Debt Securities, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoints a receiver, liquidator, assignee, Custodian, trustee, sequestrator or other similar official of the Company or for any substantial part of its property, or orders the winding-up or liquidation of its affairs and such decree, appointment or order shall remain unstayed and in effect for a period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, Custodian, sequestrator or other similar official of the Company or of any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or
(f) the Trust shall have voluntarily or involuntarily liquidated, dissolved, wound-up its business or otherwise terminated its existence except in connection with (1) the distribution of the Debt Securities to holders of the Trust Securities in liquidation of their interests in the Trust, (2) the redemption of all of the outstanding Trust Securities or (3) mergers, consolidations or amalgamations, each as permitted by the Declaration.
If an Event of Default specified under clause (a), (b) or (c) of this
Section 5.01 occurs and is continuing with respect to the Debt Securities, then,
in each and every such case, either the Indenture Trustee or the holders of not
less than 25% in aggregate principal amount of the Debt Securities then
outstanding hereunder, by notice in writing to the Company (and to the Indenture
Trustee if given by Securityholders), may declare the entire principal amount of
the Debt Securities and any premium and interest accrued, but unpaid, thereon to
be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable. If an Event of Default specified under
clause (d), (e) or (f) of this Section 5.01 occurs, then, in each and every such
case, the entire principal amount of the Debt Securities and any premium and
interest accrued, but unpaid, thereon shall IPSO FACTO become immediately due
and payable without further action.
The foregoing provisions, however, are subject to the condition that if, at any time after the principal of the Debt Securities shall have become due by acceleration and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, (i) the Company shall pay or shall deposit with the Indenture Trustee a sum sufficient to pay all matured installments of interest upon all the Debt Securities and all payments on the Debt Securities which shall have become due otherwise than by acceleration (with interest upon all such payments and Deferred Interest, to the extent permitted by law) and such amount as shall be sufficient to cover reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, their respective agents, attorneys and counsel, and all other amounts due to the Indenture Trustee pursuant to Section 6.06, if any, and (ii) all Events of Default under this Indenture, other than the non-payment of the payments in respect of Debt Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then, in each and every such case, the holders of a majority in aggregate principal amount of the Debt Securities then outstanding, by written notice to the Company and to the Indenture Trustee, may waive all defaults and rescind and annul such acceleration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon; PROVIDED, HOWEVER, that if the Debt Securities are held by the Trust or a trustee of the Trust, such waiver or rescission and annulment shall not be effective until the holders of a majority in aggregate Liquidation Amount of the outstanding Capital Securities of the Trust shall have consented to such waiver or rescission and annulment.
In case the Indenture Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Indenture Trustee, then and in every such case the Company, the Indenture Trustee and the holders of the Debt Securities shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Indenture Trustee and the holders of the Debt Securities shall continue as though no such proceeding had been taken.
SECTION 5.02 PAYMENT OF DEBT SECURITIES ON DEFAULT; SUIT THEREFOR.
The Company covenants that upon the occurrence of an Event of Default pursuant to clause (a) or (b) of Section 5.01 and upon demand of the Indenture Trustee, the Company will pay to the Indenture Trustee, for the benefit of the holders of the Debt Securities, the whole amount that then shall have become due and payable on all Debt Securities, including Deferred Interest accrued on the Debt Securities; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including a reasonable compensation to the Indenture Trustee, its agents, attorneys and counsel, and any other amounts due to the Indenture Trustee under Section 6.06. In case the Company shall fail forthwith to pay such amounts upon such demand, the Indenture Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor on such Debt Securities and collect in the manner provided by law out of the property of the Company or any other obligor on such Debt Securities wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Debt Securities under Bankruptcy Law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar judicial proceedings relative to the Company or other obligor upon the Debt Securities, or to the creditors or property of the Company or such other obligor, the Indenture Trustee, irrespective of whether the principal of the Debt Securities shall then be due and payable as therein expressed or by acceleration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section 5.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Debt Securities and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all other amounts due to the Indenture Trustee under Section 6.06) and of the Securityholders allowed in such judicial proceedings relative to the Company or any other obligor on the Debt Securities, or to the creditors or property of the Company or such other obligor, unless prohibited by applicable law and regulations, to vote on behalf of the holders of the Debt Securities in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or Person performing similar functions in comparable proceedings, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Securityholders to make such payments to the Indenture Trustee, and, in the event that the Indenture Trustee shall consent to the making of such payments directly to the Securityholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other amounts due to the Indenture Trustee under Section 6.06.
Nothing herein contained shall be construed to authorize the Indenture Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Debt Securities or the rights of any holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Debt Securities, may be enforced by the Indenture Trustee without the possession of any of the Debt Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the holders of the Debt Securities.
In any proceedings brought by the Indenture Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the holders of the Debt Securities, and it shall not be necessary to make any holders of the Debt Securities parties to any such proceedings.
SECTION 5.03 APPLICATION OF MONEYS COLLECTED BY INDENTURE TRUSTEE.
Any moneys collected by the Indenture Trustee shall be applied in the following order, at the date or dates fixed by the Indenture Trustee for the distribution of such moneys, upon presentation of the Debt Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses incurred by, and reasonable fees of the Indenture Trustee and its agents and attorneys and all other amounts due to the Indenture Trustee under Section 6.06;
Second: To the payment of all Senior Debt of the Company if and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon the Debt Securities in respect of which or for the benefit of which money has been collected, ratably, without preference or priority of any kind, according to the amounts due on such Debt Securities for principal, premium, if any, interest and Liquidated Damages, if any, respectively; and
Fourth: To the Company.
SECTION 5.04 PROCEEDINGS BY SECURITYHOLDERS.
(a) Except as provided in Section 5.04(c) below, no holder of any Debt Security shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such holder previously shall have given to the Indenture Trustee written notice of the occurrence and continuance of an Event of Default with respect to the Debt Securities specifying such Event of
Default, and (ii) the holders of not less than 25% in aggregate principal amount of the Debt Securities then outstanding shall have made written request upon the Indenture Trustee to institute such action, suit or proceeding in its own name as Indenture Trustee hereunder and shall have offered to the Indenture Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Indenture Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action, suit or proceeding, it being understood and intended, and being expressly covenanted by the holder of every Debt Security with every other holder and the Indenture Trustee, that no holder of Debt Securities shall have any right in any manner whatsoever by virtue of or by availing itself of any provision of this Indenture to affect, disturb or prejudice the rights of any other holder of Debt Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Debt Securities.
(b) Notwithstanding any other provisions in this Indenture, however, the right of any holder of any Debt Security to receive payment of the principal of and premium, if any, and interest and Liquidated Damages, if any, on such Debt Security, when due or to institute suit for the enforcement of any such payment, shall not be impaired or affected without the consent of such holder. For the protection and enforcement of the provisions of this Section 5.04, each and every Securityholder and the Indenture Trustee shall be entitled to such relief as can be given either at law or in equity.
(c) The Company acknowledges that, with respect to any Debt Securities held by the Trust or a trustee of such Trust, if the trustee of such Trust fails to enforce its rights under this Indenture as the holder of the Debt Securities held as the assets of the Trust, any holder of Capital Securities may institute legal proceedings, subject to Section 5.08, directly against the Company to enforce such trustee's rights under this Indenture without first instituting any legal proceedings against such trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Company to pay principal of or premium, if any, or interest or Liquidated Damages, if any, on the Debt Securities when due, the Company acknowledges that each holder of Capital Securities may directly institute a proceeding for enforcement of payment to such holder of the principal of and premium, if any, or interest or Liquidated Damages, if any, on the Debt Securities having an aggregate principal amount equal to the aggregate Liquidation Amount of the Capital Securities of such holder on or after the respective due date specified in the Debt Securities; it being understood that references to due dates shall include an Optional Redemption Date or the Special Redemption Date, as the case may be.
SECTION 5.05 PROCEEDINGS BY INDENTURE TRUSTEE.
In case an Event of Default occurs with respect to Debt Securities and is continuing, the Indenture Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Indenture Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Indenture Trustee by this Indenture or by law.
SECTION 5.06 REMEDIES CUMULATIVE AND CONTINUING.
Except as otherwise provided in Section 2.10, all powers and remedies given by this Article V to the Indenture Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Indenture Trustee or the holders of the Debt Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise established with respect to the Debt Securities, and no delay or omission of the Indenture Trustee or of any holder of any of the Debt Securities to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 5.04, every power and remedy given by this Article V or by law to the Indenture Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Indenture Trustee or by the Securityholders.
SECTION 5.07 RESTORATION OF RIGHTS AND REMEDIES.
If the Indenture Trustee or any holder of the Debt Securities has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Indenture Trustee or to such holder of the Debt Securities, then and in every such case the Company, the Indenture Trustee and the holder of the Debt Securities shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the holders of the Debt Securities shall continue as though no such proceeding had been instituted.
SECTION 5.08 DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF SECURITYHOLDERS.
The holders of a majority in aggregate principal amount of the Debt Securities affected at the time outstanding and, if the Debt Securities are held by the Trust or a trustee of the Trust, the holders of a majority in aggregate Liquidation Amount of the outstanding Capital Securities of the Trust shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee with respect to such Debt Securities; PROVIDED, HOWEVER, that if the Debt Securities are held by the Trust or a trustee of the Trust, such time, method and place or such exercise, as the case may be, may not be so directed until the holders of a majority in aggregate Liquidation Amount of the outstanding Capital Securities of the Trust shall have directed such time, method and place or such exercise, as the case may be; PROVIDED, FURTHER, that (subject to the provisions of Section 6.01) the Indenture Trustee shall have the right to decline to follow any such direction if the Indenture Trustee in good faith shall determine that the action so directed would be unjustly prejudicial to the holders not taking part in such direction or if the Indenture Trustee being advised by counsel determines that the action or proceeding so directed may not
lawfully be taken or if a Responsible Officer of the Indenture Trustee shall determine that the action or proceedings so directed would involve the Indenture Trustee in personal liability. Prior to any declaration of acceleration, or IPSO FACTO acceleration, of the maturity of the Debt Securities, the holders of a majority in aggregate principal amount of the Debt Securities at the time outstanding may on behalf of the holders of all of the Debt Securities waive (or modify any previously granted waiver of) any past Default or Event of Default and its consequences, except a default:
(a) in the payment of principal of or premium, if any, or interest or Liquidated Damages, if any, on any of the Debt Securities (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the Indenture Trustee),
(b) in respect of covenants or provisions hereof which cannot be modified or amended without the consent of the holder of each Debt Security affected, or
(c) in respect of the covenants contained in Section 3.09;
PROVIDED, HOWEVER, that if the Debt Securities are held by the Trust or a trustee of the Trust, such waiver or modification to such waiver shall not be effective until the holders of a majority in aggregate Liquidation Amount of the outstanding Capital Securities of the Trust shall have consented to such waiver or modification to such waiver; PROVIDED, FURTHER, that if the consent of the holder of each outstanding Debt Security is required, such waiver or modification to such waiver shall not be effective until each holder of the outstanding Capital Securities of the Trust shall have consented to such waiver or modification to such waiver. Upon any such waiver or modification to such waiver, the Default or Event of Default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the Indenture Trustee and the holders of the Debt Securities shall be restored to their former positions and rights hereunder, respectively; but no such waiver or modification to such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 5.08, said Default or Event of Default shall for all purposes of the Debt Securities and this Indenture be deemed to have been cured and to be not continuing.
SECTION 5.09 NOTICE OF DEFAULTS.
(a) The Indenture Trustee shall, within 90 days after the occurrence of
a Default with respect to the Debt Securities actually known to a Responsible
Officer of the Indenture Trustee, mail to all Securityholders, as the names and
addresses of such holders appear upon the Debt Security Register, notice of all
such Defaults, unless such Default shall have been cured before the giving of
such notice (the term "Default" for the purpose of this Section 5.09 being
hereby defined to be any of the events specified in clauses (a), (b), (c), (d),
(e) and (f) of Section 5.01, not including periods of grace, if any, provided
for therein, and irrespective of the giving of written notice specified in
clause (c) of Section 5.01); PROVIDED, HOWEVER, that, except in the case of
Default in the payment of the principal of or premium, if any, or interest or
Liquidated Damages, if any, on any of the Debt Securities, the Indenture Trustee
shall be protected in
withholding such notice if and so long as a Responsible Officer of the Indenture Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders.
(b) Within ten Business Days after the occurrence of any Event of Default actually known to a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall transmit notice of such Event of Default to all Securityholders as their names and addresses appear on the Debt Security Register, unless such Event of Default shall have been cured or waived.
SECTION 5.10 UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each holder of any Debt
Security by its acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Indenture
Trustee for any action taken or omitted by it as Indenture Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and, that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.10
shall not apply to any suit instituted by the Indenture Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in aggregate principal amount of the Debt Securities
outstanding, or if such Debt Securities are held by the Trust or a trustee of
the Trust, more than 10% in Liquidation Amount of the outstanding Capital
Securities, or to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of or premium, if any, or interest or Liquidated
Damages, if any, on any Debt Security against the Company on or after the same
shall have become due and payable or to any suit instituted in accordance with
Section 5.04(c).
ARTICLE VI
CONCERNING THE INDENTURE TRUSTEE
SECTION 6.01 DUTIES AND RESPONSIBILITIES OF INDENTURE TRUSTEE.
With respect to the holders of the Debt Securities issued hereunder, the Indenture Trustee, prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default has occurred (which has not been cured or waived), the Indenture Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs.
No provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or bad faith, except that:
(a) prior to the occurrence of an Event of Default and after the curing or waiving of such Events of Default which may have occurred,
(1) the duties and obligations of the Indenture Trustee shall be determined solely by the express provisions of this Indenture, and the Indenture Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and
(2) in the absence of bad faith on the part of the Indenture Trustee, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificate or opinion furnished to the Indenture Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificate or opinion which by any provision hereof is specifically required to be furnished to the Indenture Trustee, the Indenture Trustee shall be under a duty to examine the same to determine only whether or not it conforms on its face to the requirements of this Indenture;
(b) the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers, unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(c) the Indenture Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Securityholders pursuant to Section 5.08, relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Indenture; and
(d) the Indenture Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Debt Securities unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to the Indenture Trustee by the Company or any other obligor on the Debt Securities or by any holder of the Debt Securities, except that the Indenture Trustee shall be deemed to have knowledge of any Event of Default pursuant to Sections 5.01(a) or 5.01(b) hereof (other than an Event of Default resulting from the default in the payment of Additional Amounts or Liquidated Damages if the Indenture Trustee does not have actual knowledge or written notice that such payment is due and payable) .
None of the provisions contained in this Indenture shall require the Indenture Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers.
SECTION 6.02 RELIANCE ON DOCUMENTS, OPINIONS, ETC.
Except as otherwise provided in Section 6.01:
(a) the Indenture Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Indenture Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Indenture Trustee may consult with counsel of its selection and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; and the Indenture Trustee shall have the right at any time to seek instructions concerning the administration of this Indenture from any court of competent jurisdiction.
(d) the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; nothing contained herein shall, however, relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default (that has not been cured or waived), to exercise with respect to the Debt Securities such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs;
(f) the Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, coupon or other paper or document, unless requested in writing to do so by
the holders of a majority in aggregate principal amount of the outstanding Debt Securities affected thereby; PROVIDED, HOWEVER, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding; and
(g) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents (including any Authenticating Agent) or attorneys, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed by it with due care.
SECTION 6.03 NO RESPONSIBILITY FOR RECITALS, ETC.
The recitals contained herein and in the Debt Securities (except in the certificate of authentication of the Indenture Trustee or the Authenticating Agent) shall be taken as the statements of the Company, and the Indenture Trustee and the Authenticating Agent assume no responsibility for the correctness of the same. The Indenture Trustee and the Authenticating Agent make no representations as to the validity or sufficiency of this Indenture or of the Debt Securities. The Indenture Trustee and the Authenticating Agent shall not be accountable for the use or application by the Company of any Debt Securities or the proceeds of any Debt Securities authenticated and delivered by the Indenture Trustee or the Authenticating Agent in conformity with the provisions of this Indenture.
SECTION 6.04 INDENTURE TRUSTEE, AUTHENTICATING AGENT, PAYING AGENTS, TRANSFER AGENTS AND REGISTRAR MAY OWN DEBT SECURITIES.
The Indenture Trustee or any Authenticating Agent or any Paying Agent or any transfer agent or any security registrar for the Debt Securities, in its individual or any other capacity, may become the owner or pledgee of Debt Securities with the same rights it would have if it were not Indenture Trustee, Authenticating Agent, Paying Agent, transfer agent or security registrar for the Debt Securities.
SECTION 6.05 MONEYS TO BE HELD IN TRUST.
Subject to the provisions of Section 12.04, all moneys received by the Indenture Trustee or any Paying Agent shall, until used or applied as herein provided, be held in trust for the purpose for which they were received, but need not be segregated from other funds except to the extent required by law. The Indenture Trustee and any Paying Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys, if any, shall be paid from time to time to the Company upon a Company Order.
SECTION 6.06 COMPENSATION AND EXPENSES OF INDENTURE TRUSTEE.
The Company, as issuer of Debt Securities under this Indenture, covenants and agrees to pay to the Indenture Trustee from time to time, and the Indenture Trustee shall be entitled to, such compensation as shall be agreed to in writing between the Company and the Indenture Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Company will pay or reimburse the Indenture Trustee upon its written request for all documented reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and of all persons not regularly in its employ), except any such expense, disbursement or advance that arises from its negligence, willful misconduct, or bad faith. The Company also covenants to indemnify each of the Indenture Trustee (including in its individual capacity) and any predecessor Indenture Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any and all loss, damage, claim, action, suit, liability or expense including taxes (other than taxes based on the income of the Indenture Trustee), arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability, except to the extent such loss, damage, claim, liability or expense results from the negligence, willful misconduct, or bad faith of such indemnitee. The obligations of the Company under this Section 6.06 to compensate and indemnify the Indenture Trustee and to pay or reimburse the Indenture Trustee for documented expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Debt Securities upon all property and funds held or collected by the Indenture Trustee as such, except funds held in trust for the benefit of the holders of particular Debt Securities.
Without prejudice to any other rights available to the Indenture
Trustee under applicable law, when the Indenture Trustee incurs expenses or
renders services in connection with an Event of Default as specified in clause
(d), (e) or (f) of Section 5.01, the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for its services are intended
to constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section 6.06 shall survive the resignation or removal of the Indenture Trustee and the defeasance or other termination of this Indenture.
Notwithstanding anything in this Indenture or any Debt Security to the contrary, the Indenture Trustee shall have no obligation whatsoever to advance funds to pay any principal of or premium, if any, or interest or Liquidated Damages, if any, on or other amounts with respect to the Debt Securities or otherwise advance funds to or on behalf of the Company.
SECTION 6.07 OFFICERS' CERTIFICATE AS EVIDENCE.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in the administration of the provisions of this Indenture the Indenture Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may, in the absence of
negligence, willful misconduct or bad faith on the part of the Indenture Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Indenture Trustee, and such Officers' Certificate, in the absence of negligence, willful misconduct or bad faith on the part of the Indenture Trustee, shall be full authorization to the Indenture Trustee for any action taken or omitted by it under the provisions of this Indenture in reliance theron.
SECTION 6.08 CONFLICTING INTEREST OF INDENTURE TRUSTEE.
If the Indenture Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Indenture Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 6.09 ELIGIBILITY OF INDENTURE TRUSTEE.
The Indenture Trustee hereunder shall at all times be a U.S. Person that is a banking corporation or national association organized and doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or other Person permitted to act as trustee by the Commission authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000) and subject to supervision or examination by federal, state, territorial, or District of Columbia authority. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 6.09 the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Indenture Trustee.
In case at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of this Section 6.09, the Indenture Trustee shall resign immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10 RESIGNATION OR REMOVAL OF INDENTURE TRUSTEE.
(a) The Indenture Trustee, or any trustee or trustees hereafter appointed, may at any time resign by giving written notice of such resignation to the Company and by mailing notice thereof, at the Company's expense, to the holders of the Debt Securities at their addresses as they shall appear on the Debt Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee or trustees, in accordance with the provisions of Section 6.09, by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Indenture Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 60 days after the mailing of such notice of resignation to the affected Securityholders, the resigning Indenture Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide holder of a Debt Security for at least six months may, subject to the provisions of Section 5.10, on behalf of such Securityholder and all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Indenture Trustee shall fail to comply with the provisions of Section 6.09 after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a Debt Security or Debt Securities for at least six months, or
(2) the Indenture Trustee shall cease to be eligible in accordance with the provisions of Section 6.09 and shall fail to resign after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a Debt Security or Debt Securities for at least six months, or
(3) the Indenture Trustee shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Indenture Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Indenture Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Indenture Trustee and appoint a successor trustee, in accordance with the provisions of Section 6.09, by written instrument, in duplicate, one copy of which instrument shall be delivered to the Indenture Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 5.10, if no successor trustee shall have been so appointed and have accepted appointment within 60 days of the occurrence of (1), (2) or (3) above, any Securityholder who has been a bona fide holder of a Debt Security for at least six months may, on behalf of such Securityholder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Indenture Trustee and appoint a successor trustee.
(c) Upon prior written notice to the Company and the Indenture Trustee, the holders of a majority in aggregate principal amount of the Debt Securities at the time outstanding may at any time remove the Indenture Trustee and nominate a successor trustee, which shall be deemed appointed as successor trustee unless within ten Business Days after written notification of such nomination the Company objects thereto. If no successor trustee shall have been so appointed and shall have accepted appointment within 60 days after such removal, the Indenture Trustee so removed or any Securityholder, upon the terms and conditions and otherwise as in subsection (a) of this Section 6.10, may petition any court of competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Indenture Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 ACCEPTANCE BY SUCCESSOR INDENTURE TRUSTEE; SUPPLEMENTAL INDENTURE.
Any successor trustee appointed as provided in Section 6.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all of the rights, powers, trusts and duties of the retiring trustee shall be vested in the successor trustee, and thereupon the resignation or removal of the retiring trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as trustee herein; PROVIDED, HOWEVER, that, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of all amounts then due it pursuant to the provisions of Section 6.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring trustee thereunder. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
In no event shall a retiring trustee be liable for the acts or omissions of any successor trustee hereunder.
Upon acceptance of appointment by a successor trustee as provided in this Section 6.11, the Company shall mail notice of the succession of such trustee hereunder to the holders of Debt Securities at their addresses as they shall appear on the Debt Security Register. If the Company fails to mail such notice within 10 days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company.
SECTION 6.12 SUCCESSION BY MERGER, ETC.
Any Person into which the Indenture Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Indenture Trustee, shall be the successor of the Indenture Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, PROVIDED, THAT such corporation shall be otherwise eligible and qualified under this Article VI.
In case any Debt Securities shall have been authenticated but not delivered at the time such successor to the Indenture Trustee shall succeed to the trusts created by this Indenture, any such successor to the Indenture Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Debt Securities so authenticated; and in case at that time any of the Debt Securities shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Debt Securities either in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which the Debt Securities or this Indenture elsewhere provides that the certificate of the Indenture Trustee shall have; PROVIDED, HOWEVER, that the right to adopt the certificate of authentication of any predecessor Indenture Trustee or authenticate Debt Securities in the name of any predecessor Indenture Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 6.13 LIMITATION ON RIGHTS OF INDENTURE TRUSTEE AS A CREDITOR.
The Indenture Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. An Indenture Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION 6.14 AUTHENTICATING AGENTS.
There may be one or more Authenticating Agents appointed by the Indenture Trustee upon the request of the Company with power to act on the Indenture Trustee's behalf and subject to the Indenture Trustee's direction in the authentication and delivery of Debt Securities issued upon exchange or transfer thereof as fully to all intents and purposes as though any such Authenticating Agent had been expressly authorized to authenticate and deliver Debt Securities; PROVIDED, HOWEVER, that the Indenture Trustee shall have no liability to the Company for any acts or omissions of the Authenticating Agent with respect to the authentication and delivery of Debt Securities. Any such Authenticating Agent shall at all times be a Person organized and doing business under the laws of the United States or of any state or territory thereof or of the District of Columbia authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of at least $50,000,000 and being subject to supervision or examination by federal, state, territorial or District of Columbia authority. If such Person publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 6.14 the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.14, it shall resign immediately in the manner and with the effect herein specified in this Section 6.14.
Any Person into which any Authenticating Agent may be merged, converted or with which it may be consolidated, or any Person resulting from any merger or conversion or consolidation to which any Authenticating Agent shall be a party, or any Person succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor Person is otherwise eligible under this Section 6.14 without the execution or filing of any paper or any further act on the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of resignation to the Indenture Trustee and to the Company. The Indenture Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible under this Section 6.14, the Indenture Trustee may, and upon the request of the Company shall, promptly appoint a successor Authenticating Agent eligible under this Section 6.14, shall give written notice of such appointment to the Company and shall mail notice of such appointment to all Securityholders as the names and addresses of such holders appear on the Debt Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent herein.
The Company, as issuer of the Debt Securities, agrees to pay to any Authenticating Agent from time to time reasonable compensation for its services. Any Authenticating Agent shall have no responsibility or liability for any action taken by it as such in accordance with the directions of the Indenture Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01 ACTION BY SECURITYHOLDERS.
Whenever in this Indenture it is provided that the holders of a specified percentage in aggregate principal amount of the Debt Securities or aggregate Liquidation Amount of the Capital Securities may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the holders of such specified percentage have joined therein may be evidenced (a) by any instrument (including by way of electronic transmission) or any number of instruments of similar tenor executed by such Securityholders or holders of Capital Securities, as the case may be, in person or by agent or proxy appointed in writing, or (b) by the record of such holders of Debt Securities voting in favor thereof at any meeting of such Securityholders duly called and held in accordance with the provisions of Article VIII or of such holders of Capital Securities duly called and held in accordance with the provisions of the Declaration, or (c) by a combination of such instrument or instruments and any such record of such a meeting of such Securityholders or holders of Capital Securities, as the case may be, or (d) by any other method the Indenture Trustee deems satisfactory.
If the Company shall solicit from the Securityholders any request, demand, authorization, direction, notice, consent, waiver or other action or revocation of the same, the Company may, at its option, as evidenced by an Officers' Certificate, fix in advance a record date for such Debt Securities for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action or revocation of the same, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action or revocation of the same may be given before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of outstanding Debt Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action or revocation of the same, and for that purpose the outstanding Debt Securities shall be computed as of the record date; PROVIDED, HOWEVER, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
SECTION 7.02 PROOF OF EXECUTION BY SECURITYHOLDERS.
Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the execution of any instrument by a Securityholder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Indenture Trustee or in such manner as shall be satisfactory to the Indenture Trustee. The ownership of Debt Securities shall be proved by the Debt Security Register or by a certificate of the security registrar for the Debt Securities. The Indenture Trustee may require such additional proof of any matter referred to in this Section 7.02 as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the manner provided in Section 8.06.
SECTION 7.03 WHO ARE DEEMED ABSOLUTE OWNERS.
Prior to due presentment for registration of transfer of any Debt Security, the Company, the Indenture Trustee, any Authenticating Agent, any Paying Agent, any transfer agent and any security registrar for the Debt Securities may deem the person in whose name such Debt Security shall be registered upon the Debt Security Register to be, and may treat such Person as, the absolute owner of such Debt Security (whether or not such Debt Security shall be overdue) for the purpose of receiving payment of or on account of the principal of and premium, if any, and interest and Liquidated Damages, if any, on such Debt Security and for all other purposes; and none of the Company, the Indenture Trustee, any Authenticating Agent, any Paying Agent, any transfer agent or any security registrar for the Debt Securities shall be affected by any notice to the contrary. All such payments so made to any holder for the time being or upon such holder's order shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Debt Security.
SECTION 7.04 DEBT SECURITIES OWNED BY COMPANY DEEMED NOT OUTSTANDING.
In determining whether the holders of the requisite aggregate principal amount of Debt Securities have concurred in any direction, consent or waiver under this Indenture, Debt Securities that are owned by the Company or any other obligor on the Debt Securities or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company (other than the Trust) or any other obligor on the Debt Securities shall be disregarded and deemed not to be outstanding for the purpose of any such determination; PROVIDED, HOWEVER, that for the purposes of determining whether the Indenture Trustee shall be protected in relying on any such direction, consent or waiver, only Debt Securities which a Responsible Officer of the Indenture Trustee actually knows are so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this Section 7.04 if the pledgee shall establish to the satisfaction of the Indenture Trustee the pledgee's right to vote such Debt Securities and that the pledgee is not the Company or any such other obligor or Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor. In the case of a dispute as to such right, any decision by the Indenture Trustee taken upon the advice of counsel shall be full protection to the Indenture Trustee.
SECTION 7.05 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Indenture
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Debt Securities specified
in this Indenture in connection with such action, any holder (in cases where no
record date has been set pursuant to Section 7.01) or any holder as of an
applicable record date (in cases where a record date has been set pursuant to
Section 7.01) of a Debt Security (or any Debt Security issued in whole or in
part in exchange or substitution therefor), subject to Section 7.01, the serial
number of which is shown by the evidence to be included in the group of Debt
Securities the holders of which have consented to such action, may, by filing
written notice with the Indenture Trustee at the Principal Office of the
Indenture Trustee and upon proof of holding as provided in Section 7.02, revoke
such action so far as concerns such Debt Security (or so far as concerns the
principal amount represented by any exchanged or substituted Debt Security).
Except as aforesaid, any such action taken by the holder of any Debt Security
shall be conclusive and binding upon such holder and upon all future holders and
owners of such Debt Security, and of any Debt Security issued in exchange or
substitution therefor, or on registration or transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security or
any Debt Security issued in exchange or substitution therefor.
ARTICLE VIII
MEETINGS OF SECURITYHOLDERS
SECTION 8.01 PURPOSES OF MEETINGS.
A meeting of Securityholders may be called at any time and from time to time pursuant to the provisions of this Article VIII for any of the following purposes:
(a) to give any notice to the Company or to the Indenture Trustee, or to give any directions to the Indenture Trustee, or to consent to the waiving of any Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article V;
(b) to remove the Indenture Trustee and nominate a successor trustee pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of such Debt Securities under any other provision of this Indenture or under applicable law.
SECTION 8.02 CALL OF MEETINGS BY INDENTURE TRUSTEE.
The Indenture Trustee may at any time call a meeting of Securityholders to take any action specified in Section 8.01, to be held at such time and at such place in the City of New York, the Borough of Manhattan, or Wilmington, Delaware as the Indenture Trustee shall determine. Notice of every meeting of the Securityholders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to holders of Debt Securities affected at their addresses as they shall appear on the Debt Security Register. Such notice shall be mailed not less than 20 nor more than 180 days prior to the date fixed for the meeting.
SECTION 8.03 CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
holders of at least 10% in aggregate principal amount of the Debt Securities
then outstanding, shall have requested the Indenture Trustee to call a meeting
of Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Indenture Trustee shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and the
place in [COMPANY CITY] for such meeting and may call such meeting to take any
action authorized in Section 8.01, by mailing notice thereof as provided in
Section 8.02.
SECTION 8.04 QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Securityholders, a Person shall be (a) a holder of one or more Debt Securities or (b) a Person appointed by an instrument in writing as proxy by a holder of one or more Debt Securities. The only Persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Indenture Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 8.05 REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Indenture Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Debt Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
The Indenture Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders as provided in Section 8.03, in which case the Company or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each holder of Debt Securities with respect to which such meeting is being held or proxy therefor shall be entitled to one vote for each $1,000 principal amount of Debt Securities held or represented by such holder; PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in respect of any Debt Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Debt Securities held by such Chairman or instruments in writing as aforesaid duly designating such chairman as the person to vote on behalf of other Securityholders. Any meeting of Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from time to time by a majority of those present, whether or not constituting a quorum and the meeting may be held as so adjourned without further notice.
SECTION 8.06 VOTING.
The vote upon any resolution submitted to any meeting of holders of Debt Securities with respect to which such meeting is held shall be by written ballots on which shall be subscribed the signatures of such holders or of their representatives by proxy and the serial number or numbers of the Debt Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 8.02. The record shall show the serial numbers of the Debt Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Indenture Trustee to be preserved by the Indenture Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. The holders of the Initial Securities and the Exchange Securities shall vote for all purposes as a single class.
SECTION 8.07 QUORUM; ACTIONS.
The Persons entitled to vote a majority in aggregate principal amount of the Debt Securities then outstanding shall constitute a quorum for a meeting of Securityholders; PROVIDED, HOWEVER, that if any action is to be taken at such meeting with respect to a consent, waiver, request, demand, notice, authorization, direction or other action which may be given by the holders of not less than a specified percentage in aggregate principal amount of the Debt Securities then outstanding, the Persons holding or representing such specified percentage in aggregate principal amount of the Debt Securities then outstanding will constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Securityholders, be dissolved. In any other case, the
meeting may be adjourned for a period of not less than 10 days as determined by the permanent chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the permanent chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 8.02, except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the aggregate principal amount of the Debt Securities then outstanding which shall constitute a quorum.
Except as limited by the proviso in the first paragraph of Section 9.02, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the holders of a majority in aggregate principal amount of the Debt Securities then outstanding; PROVIDED, HOWEVER, that, except as limited by the proviso in the first paragraph of Section 9.02, any resolution with respect to any consent, waiver, request, demand, notice, authorization, direction or other action that this Indenture expressly provides may be given by the holders of not less than a specified percentage in outstanding principal amount of the Debt Securities may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid only by the affirmative vote of the holders of not less than such specified percentage in aggregate principal amount of the Debt Securities then outstanding.
Any resolution passed or decision taken at any meeting of holders of Debt Securities duly held in accordance with this Section 8.07 shall be binding on all the Securityholders, whether or not present or represented at the meeting.
ARTICLE IX
AMENDMENTS
SECTION 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
The Company, when authorized by a Board Resolution, and the Indenture Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto, without the consent of the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another Person to the Company, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Company, pursuant to Article XI hereof;
(b) to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the holders of Debt Securities as the Board of Directors shall consider to be for the protection of the holders of such Debt Securities, and to make the occurrence, or the occurrence and continuance, of a Default in any of such additional covenants, restrictions or conditions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; PROVIDED, HOWEVER, that in respect of any such additional covenant, restriction or condition such supplemental indenture
may provide for a particular period of grace after Default (which period may be shorter or longer than that allowed in the case of other Defaults) or may provide for an immediate enforcement upon such Default or may limit the remedies available to the Indenture Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture, PROVIDED, THAT any such action shall not adversely affect the interests of the holders of the Debt Securities then outstanding;
(d) to add to, delete from, or revise the terms of Debt Securities, including, without limitation, any terms relating to the issuance, exchange, registration or transfer of Debt Securities, including to provide for transfer procedures and restrictions substantially similar to those applicable to the Capital Securities, as required by Section 2.09 (for purposes of assuring that no registration of Debt Securities is required under the Securities Act), PROVIDED, that any such action shall not adversely affect the interests of the holders of the Debt Securities then outstanding (it being understood, for purposes of this proviso, that transfer restrictions on Debt Securities substantially similar to those applicable to Capital Securities shall not be deemed to adversely affect the holders of the Debt Securities);
(e) to evidence and provide for the acceptance of appointment hereunder by a successor Indenture Trustee with respect to the Debt Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Indenture Trustee, pursuant to the requirements of Section 6.11;
(f) to qualify or maintain qualification of this Indenture under the Trust Indenture Act;
(g) to make any change (other than as elsewhere provided in this Section) that does not adversely affect the rights of any Securityholder in any material respect; or
(h) to provide for the issuance of and establish the form and terms and conditions of the Debt Securities, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or the Debt Securities, or to add to the rights of the holders of Debt Securities.
The Indenture Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Indenture Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture which affects the Indenture Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed by the Company and the Indenture Trustee without the consent of the holders of any of
the Debt Securities at the time outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent (evidenced as provided in Section 7.01) of the holders
of a majority in aggregate principal amount of the Debt Securities at the time
outstanding affected by such supplemental indenture, the Company, when
authorized by a Board Resolution, and the Indenture Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act, then in
effect, applicable to indentures qualified thereunder) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities; PROVIDED, HOWEVER, that no
such supplemental indenture shall, without the consent of the holders of each
Debt Security then outstanding and affected thereby, (i) change the Maturity
Date of any Debt Security, or reduce the principal of or any premium on, or
reduce the rate or extend the time of payment of interest thereon (except
pursuant to Section 2.08), or reduce (other than as a result of the maturity or
earlier redemption of any such Debt Security in accordance with the terms of
this Indenture and such Debt Security) or increase the aggregate principal
amount of Debt Securities then outstanding, or change any of the redemption
provisions, or make the principal thereof or any interest or premium thereon
payable in any coin or currency other than United States Dollars, or impair or
affect the right of any Securityholder to institute suit for payment thereof, or
(ii) reduce the aforesaid percentage of Debt Securities the holders of which are
required to consent to any such supplemental indenture; and PROVIDED, FURTHER,
that if the Debt Securities are held by the Trust or the Indenture Trustee of
the Trust, such supplemental indenture shall not be effective until the holders
of a majority in aggregate Liquidation Amount of the outstanding Capital
Securities shall have consented to such supplemental indenture; PROVIDED,
FURTHER, that if the consent of the Securityholder of each outstanding Debt
Security is required, such supplemental indenture shall not be effective until
each holder of the outstanding Capital Securities shall have consented to such
supplemental indenture.
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and upon the filing with the Indenture Trustee of evidence of the consent of Securityholders (and holders of Capital Securities, if required) as aforesaid, the Indenture Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Indenture Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Indenture Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the Indenture Trustee of any supplemental indenture pursuant to the provisions of this Section 9.02, the Indenture Trustee shall transmit by mail, first class postage prepaid, a notice, prepared by the Company, setting forth in general terms the substance of such supplemental indenture, to the Securityholders as their names and addresses appear upon the Debt Security Register. Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL INDENTURES.
Any supplemental indenture executed pursuant to the provisions of this Article IX shall comply with the Trust Indenture Act. Upon the execution of any supplemental indenture pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Indenture Trustee, the Company and the holders of Debt Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.04 NOTATION ON DEBT SECURITIES.
Debt Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article IX may bear a notation as to any matter provided for in such supplemental indenture. If the Company or the Indenture Trustee shall so determine, new Debt Securities so modified as to conform, in the opinion of the Indenture Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the Indenture Trustee or the Authenticating Agent and delivered in exchange for the Debt Securities then outstanding.
SECTION 9.05 EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TO INDENTURE TRUSTEE.
The Indenture Trustee, subject to the provisions of Sections 6.01 and 6.02, shall be entitled to receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article IX. The Trustee shall also receive an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article IX is authorized or permitted by, and conforms to, the terms of this Article IX and that it is proper for the Trustee under the provisions of this Article IX to join in the execution thereof.
ARTICLE X
REDEMPTION OF DEBT SECURITIES
SECTION 10.01 OPTIONAL REDEMPTION.
The Company shall have the right, subject to the receipt by the Company of the prior approval from the OTS or such other bank regulatory authority that is the primary holding company regulator of the Company, if then required under applicable capital guidelines or policies of the OTS or such other bank regulatory authority that is the primary holding company
regulator of the Company, to redeem the Debt Securities, in whole or (provided that unpaid interest and Liquidated Damages, if any, accrued thereon has been paid on all Debt Securities for all Interest Periods terminating on or prior to such date) from time to time in part, on any Interest Payment Date on or after April 15, 2009 (each, an "Optional Redemption Date"), at the Optional Redemption Price.
SECTION 10.02 SPECIAL EVENT REDEMPTION.
If a Special Event shall occur and be continuing, the Company shall have the right, subject to the receipt by the Company of prior approval from the OTS, if then required under applicable capital guidelines or policies of the OTS or such other bank regulatory authority that is the primary holding company regulator of the Company, to redeem the Debt Securities, in whole but not in part, at any time within 90 days following the occurrence of such Special Event (the "Special Redemption Date"), at the Special Redemption Price.
SECTION 10.03 NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES.
In case the Company shall desire to exercise the right to redeem all, or, as the case may be, any part of the Debt Securities, it shall fix a date for redemption and shall mail, or cause the Indenture Trustee to mail (at the expense of the Company), a notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the holders of Debt Securities so to be redeemed as a whole or in part at their last addresses as the same appear on the Debt Security Register. Such mailing shall be by first class mail. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the holder of any Debt Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debt Security.
Each such notice of redemption shall specify the CUSIP number, if any, of the Debt Securities to be redeemed, the date fixed for redemption, the price at which Debt Securities are to be redeemed, the place or places of payment, that payment will be made upon presentation and surrender of such Debt Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all the Debt Securities are to be redeemed, the notice of redemption shall specify the numbers of the Debt Securities to be redeemed. In case the Debt Securities are to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Debt Security, a new Debt Security or Debt Securities in principal amount equal to the unredeemed portion thereof will be issued.
Prior to 10:00 a.m., New York City time, on the Optional Redemption Date or the Special Redemption Date specified in the notice of redemption given as provided in this Section 10.03, the Company will deposit with the Indenture Trustee or with one or more Paying Agents an amount of money sufficient to redeem on such date all the Debt Securities so called for redemption at the applicable price therefor, together with unpaid interest accrued to such date.
The Company will give the Indenture Trustee notice not less than 45 nor more than 75 days prior to the date fixed for redemption as to the price at which the Debt Securities are to be redeemed and the aggregate principal amount of Debt Securities to be redeemed and the Indenture Trustee shall select, in such manner as in its sole discretion it shall deem appropriate and fair, the Debt Securities or portions thereof (in integral multiples of $1,000) to be redeemed.
SECTION 10.04 PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION.
If notice of redemption has been given as provided in Section 10.03, the Debt Securities or portions of Debt Securities with respect to which such notice has been given shall become due and payable on the related Optional Redemption Date or Special Redemption Date (as the case may be) and at the place or places stated in such notice at the applicable price therefor, together with unpaid interest accrued thereon to said Optional Redemption Date or the Special Redemption Date (as the case may be), and on and after said Optional Redemption Date or the Special Redemption Date (as the case may be) (unless the Company shall default in the payment of such Debt Securities at the redemption price, together with unpaid interest accrued thereon to said date) interest on the Debt Securities or portions of Debt Securities so called for redemption shall cease to accrue. On presentation and surrender of such Debt Securities at a place of payment specified in said notice, such Debt Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable price therefor, together with unpaid interest accrued thereon to said Optional Redemption Date or the Special Redemption Date (as the case may be).
Upon presentation of any Debt Security redeemed in part only, the Company shall execute and the Indenture Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of the Company, a new Debt Security or Debt Securities of authorized denominations in principal amount equal to the unredeemed portion of the Debt Security so presented.
ARTICLE XI
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
SECTION 11.01 COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Debt Securities shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company, as the case may be), or successive consolidations or mergers in which the Company or its successor or successors, as the case may be, shall be a party or parties, or shall prevent any sale, conveyance, transfer, lease or other disposition of the property of the Company, or its successor or successors as the case may be, as an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company, or its successor or successors, as the case may be) authorized to acquire and operate the same; PROVIDED, THAT (a) the Company is the surviving Person, or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, conveyance, transfer, lease or other disposition of property is made is a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia, and such Person expressly assumes all of the obligations of the Company under the Debt Securities, this Indenture, the Guarantee and the
Declaration and (ii) after giving effect to, any such consolidation, merger, sale, conveyance, transfer, lease or other disposition, no Default or Event of Default shall have occurred and be continuing.
SECTION 11.02 SUCCESSOR PERSON TO BE SUBSTITUTED FOR COMPANY.
In case of any such consolidation, merger, sale, conveyance, transfer, lease or other disposition, and upon the assumption by the successor corporation, by supplemental indenture, executed and delivered to the Indenture Trustee and reasonably satisfactory in form to the Indenture Trustee, of the obligation of due and punctual payment of the principal of and premium, if any, and interest and Liquidated Damages, if any, on all of the Debt Securities and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Company, such successor Person shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the Company, and the Company thereupon shall be relieved of any further liability or obligation hereunder or upon the Debt Securities. Such successor Person thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Debt Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Indenture Trustee or the Authenticating Agent; and, upon the order of such successor Person instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Indenture Trustee or the Authenticating Agent shall authenticate and deliver any Debt Securities which previously shall have been signed and delivered by any officer of the Company to the Indenture Trustee or the Authenticating Agent for authentication, and any Debt Securities which such successor Person thereafter shall cause to be signed and delivered to the Indenture Trustee or the Authenticating Agent for that purpose. All the Debt Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Debt Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Debt Securities had been issued at the date of the execution hereof.
SECTION 11.03 OPINION OF COUNSEL TO BE GIVEN INDENTURE TRUSTEE.
The Indenture Trustee, subject to the provisions of Sections 6.01 and 6.02, shall be entitled to receive an Opinion of Counsel as conclusive evidence that any consolidation, merger, sale, conveyance, transfer, lease or other disposition, and any assumption, permitted or required by the terms of this Article XI complies with the provisions of this Article XI.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 12.01 DISCHARGE OF INDENTURE.
When (a) the Company shall deliver to the Indenture Trustee for cancellation all Debt Securities theretofore authenticated (other than any Debt Securities which shall have been destroyed, lost or stolen and which shall have been replaced as provided in Section 2.10) and not theretofore canceled, or (b) all the Debt Securities not theretofore canceled or delivered to the Indenture Trustee for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Indenture Trustee for the giving of notice of redemption, and the Company shall deposit with the Indenture Trustee, in trust, funds (which shall be immediately due and payable) sufficient to pay on the Maturity Date or upon redemption all of the Debt Securities (other than any Debt Securities which shall have been destroyed, lost or stolen and which shall have been replaced as provided in Section 2.10) not theretofore canceled or delivered to the Indenture Trustee for cancellation, including principal and premium, if any, and interest and Liquidated Damages, if any, due or to become due to the Maturity Date, any Optional Redemption Date or the Special Event Redemption Date, as the case may be, but excluding, however, the amount of any moneys for the payment of principal of and premium, if any, or interest or Liquidated Damages, if any, on the Debt Securities (1) theretofore repaid to the Company in accordance with the provisions of Section 12.04, or (2) paid to any State or to the District of Columbia pursuant to its unclaimed property or similar laws, and if, in either case the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect except for the provisions of Sections 2.09, 2.10, 3.01, 3.02, 3.04, 6.06, 6.10 and 12.04 hereof, which shall survive until such Debt Securities shall mature or are redeemed, as the case may be, and are paid in full. Thereafter, Sections 6.06, 6.10 and 12.04 shall survive, and the Indenture Trustee, on demand of the Company accompanied by an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with, and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture; the Company, however, hereby agrees to reimburse the Indenture Trustee for any costs or expenses thereafter reasonably and properly incurred by the Indenture Trustee in connection with this Indenture or the Debt Securities.
SECTION 12.02 DEPOSITED MONEYS TO BE HELD IN TRUST BY INDENTURE TRUSTEE.
Subject to the provisions of Section 12.04, all moneys deposited with the Indenture Trustee pursuant to Section 12.01 shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company if acting as its own Paying Agent), to the holders of the particular Debt Securities for the payment of which such moneys have been deposited with the Indenture Trustee, of all sums due and to become due thereon for principal, premium, if any, interest and Liquidated Damages, if any.
SECTION 12.03 PAYING AGENT TO REPAY MONEYS HELD.
Upon the satisfaction and discharge of this Indenture all moneys then held by any Paying Agent of the Debt Securities (other than the Indenture Trustee) shall, upon written demand of the Company, be repaid to it or paid to the Indenture Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
SECTION 12.04 RETURN OF UNCLAIMED MONEYS.
Any moneys deposited with or paid to the Indenture Trustee or any Paying Agent for payment of the principal of and premium, if any, or interest or Liquidated Damages, if any, on Debt Securities and not applied but remaining unclaimed by the holders of Debt Securities for
two years after the date upon which the principal of and premium, if any, or interest or Liquidated Damages, if any, on such Debt Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Indenture Trustee or such Paying Agent; and the holder of any of the Debt Securities shall thereafter look only to the Company for any payment which such holder may be entitled to collect and all liability of the Indenture Trustee or such Paying Agent with respect to such moneys shall thereupon cease.
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01 INDENTURE AND DEBT SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of and premium, if any, or interest or Liquidated Damages, if any, on any Debt Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture, or in any supplemental indenture, or in any Debt Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, officer, director employee or agent as such, past, present or future, of the Company or of any predecessor or successor Person to the Company, either directly or through the Company or any successor Person to the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of the Debt Securities.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 SUCCESSORS.
All of the covenants, stipulations, promises and agreements of the Company contained in this Indenture shall also bind the Company's successors and assigns whether so expressed or not.
SECTION 14.02 OFFICIAL ACTS BY SUCCESSOR COMPANY.
Any act or proceeding that, by any provision of this Indenture, is authorized or required to be done or performed by any board, committee, officer or other authorized Person of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any Person that shall at the time be the lawful successor of the Company.
SECTION 14.03 SURRENDER OF COMPANY POWERS.
The Company by instrument in writing executed by authority of 2/3 (two-thirds) of its Board of Directors and delivered to the Indenture Trustee may surrender any of the powers reserved to the Company hereunder, and thereupon such power so surrendered shall terminate both as to the Company and as to any permitted successor Person.
SECTION 14.04 ADDRESSES FOR NOTICES, ETC.
Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Indenture Trustee or by the holders of Debt Securities on the Company may be given or served by being deposited postage prepaid by first class mail, registered or certified mail, overnight courier service or confirmed telecopy addressed (until another address is filed by the Company with the Indenture Trustee for the purpose) to:
Dime Community Bancshares, Inc. 209 Havemeyer Street Brooklyn, New York 11211 Attention: Lance Bennett, Esq.
Any notice, direction, request or demand by any Securityholder or the Company to or upon the Indenture Trustee shall be deemed to have been sufficiently given or made, for all purposes, if received in writing by (unless another address is provided by the Indenture Trustee to the Securityholder for such purpose):
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, Delaware 19890-0001 Attention: Corporate Trust Administration.
Any notice or communication to a Securityholder shall be mailed by first class mail to his or her address shown on the Debt Security Register kept by the security registrar for the Debt Securities.
Notices required to be given to the Indenture Trustee or the Authenticating Agent shall be in writing, personally delivered or mailed first-class postage prepaid to each of the foregoing, or at such other address as shall be designated by written notice to the other parties.
SECTION 14.05 GOVERNING LAW.
This Indenture and each Debt Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State without regard to conflict of law principles of said State other than Section 5-1401 of the New York General Obligations Law.
SECTION 14.06 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Upon any application or demand by the Company to the Indenture Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Indenture Trustee an Officers' Certificate stating that in the opinion of the signers all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with (except that no such Opinion of Counsel is required to be furnished to the Indenture Trustee in connection with the authentication and issuance of Debt Securities.)
Each certificate or opinion provided for in this Indenture and delivered to the Indenture Trustee with respect to compliance with a condition or covenant provided for in this Indenture (except certificates delivered pursuant to Section 3.05) shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition and the definitions relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
SECTION 14.07 BUSINESS DAY CONVENTION.
In any case where the date of payment of principal of or premium, if any, or interest or Liquidated Damages, if any, on the Debt Securities would otherwise fall on a day that is not a Business Day, the payment of such principal of or premium, if any, or interest or Liquidated Damages, if any, on the Debt Securities will not be made on such date but will be made on the next succeeding Business Day, and without any interest or other payment in respect of such delay, all with the same force and effect as if made on the original date of payment.
SECTION 14.08 TRUST INDENTURE ACT TO CONTROL.
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 14.09 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents and the titles and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 14.10 EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
SECTION 14.11 SEPARABILITY.
In case any one or more of the provisions contained in this Indenture or in the Debt Securities shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of the Debt Securities, but this Indenture and the Debt Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 14.12 ASSIGNMENT.
Subject to Article XI, the Company will have the right at all times to assign any of its respective rights or obligations under this Indenture and the Debt Securities to a direct or indirect wholly owned Subsidiary of the Company; PROVIDED, THAT, in the event of any such assignment, the Company will remain liable for all such obligations. Subject to the foregoing, this Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns. This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01 AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each holder of Debt Securities issued hereunder and under any supplemental indenture (the "Additional Provisions") by such holder's acceptance thereof likewise covenants and agrees, that the Debt Securities shall be issued subject to the provisions of this Article XV; and each holder of a Debt Security, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the payments due (including Liquidated Damages, if any) on all Debt Securities issued hereunder and under any Additional Provisions shall, to the extent and in the manner hereinafter set forth, be subordinated and junior in right of payment to the prior payment in full of all Senior Debt, whether outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any Default or Event of Default hereunder.
SECTION 15.02 DEFAULT ON SENIOR DEBT.
In the event and during the continuation of any default by the Company in the payment of principal or premium, if any, or interest or Liquidated Damages, if any, or any other payment due on any Senior Debt following any applicable grace periods, or in the event that the maturity of any Senior Debt has been accelerated because of a default and such acceleration has not been rescinded or canceled and such Senior Debt has not been paid in full, then, in either case, no payment shall be made by the Company with respect to the payments on the Debt Securities (including Liquidated Damages, if any).
In the event that, notwithstanding the foregoing, any payment is received by the Indenture Trustee, or any Securityholder, when such payment is prohibited by this Section 15.02, such payment shall, subject to Section 15.06, be held in trust for the benefit of, and shall be paid over or delivered by the Indenture Trustee (if the notices required by Section 15.06 have been received by the Indenture Trustee) or by any Securityholder, to the holders of Senior Debt or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Debt may have been issued, as their respective interests may appear, but only to the extent that the holders of the Senior Debt (or their representative or representatives or a trustee) notify the Indenture Trustee in writing within 90 days of such
payment of the amounts then due and owing on such Senior Debt, and only the amounts specified in such notices to the Indenture Trustee shall be paid to the holders of such Senior Debt.
SECTION 15.03 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment by the Company or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, the holders of all Senior Debt of the Company will first be entitled to receive payment in full of all amounts due on or in respect of such Senior Debt, before any payment is made by the Company on account of the principal of, or premium, if any, or interest or Liquidated Damages, if any, on the Debt Securities; and upon any such dissolution, winding-up, liquidation or reorganization, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, which the Securityholders or the Indenture Trustee would be entitled to receive from the Company, except for the provisions of this Article XV, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Securityholders or by the Indenture Trustee under the Indenture if received by them or it, directly to the holders of Senior Debt of the Company (PRO RATA to such holders on the basis of the respective amounts of Senior Debt held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Debt may have been issued, as their respective interests may appear, to the extent necessary to pay such Senior Debt in full, in money or moneys worth, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Debt, before any payment or distribution is made to the Securityholders or to the Indenture Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character prohibited by the
foregoing, whether in cash, property or securities, shall be received by the
Indenture Trustee or any Securityholder before all Senior Debt is paid in full,
or provision is made for such payment in money in accordance with its terms,
such payment or distribution shall be held in trust for the benefit of and shall
be paid over or delivered by the Indenture Trustee (if the notices required by
Section 15.06 have been received by the Indenture Trustee) or by any
Securityholder, to the holders of such Senior Debt or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Debt may have been issued, as their
respective interests may appear, as calculated by the Company, for application
to the payment of all Senior Debt remaining unpaid to the extent necessary to
pay all such Senior Debt in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Debt.
For purposes of this Article XV, the words "cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article XV with respect to the Debt Securities to the payment of Senior Debt that may at the time be outstanding;
PROVIDED, THAT (i) such Senior Debt is assumed by the new Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Senior Debt are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, conveyance, transfer, lease or other disposition of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article XI of this Indenture shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 15.03 if such other Person shall, as a part of such consolidation, merger, sale, conveyance, transfer, lease or other disposition, comply with the conditions stated in Article XI of this Indenture. Nothing in Section 15.02 or in this Section 15.03 shall apply to claims of, or payments to, the Indenture Trustee under or pursuant to Section 6.06 of this Indenture.
SECTION 15.04 SUBROGATION.
Subject to the payment in full of all Senior Debt, the rights of the Securityholders shall be subrogated to the rights of the holders of such Senior Debt to receive payments or distributions of cash, property or securities of the Company, as the case may be, applicable to such Senior Debt until the principal of and premium, if any, and interest and Liquidated Damages, if any, on the Debt Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of such Senior Debt of any cash, property or securities to which the Securityholders or the Indenture Trustee would be entitled except for the provisions of this Article XV, and no payment over pursuant to the provisions of this Article XV to or for the benefit of the holders of such Senior Debt by Securityholders or the Indenture Trustee, shall, as between the Company, its creditors other than holders of Senior Debt of the Company, and the holders of the Debt Securities, be deemed to be a payment by the Company to or on account of such Senior Debt. It is understood that the provisions of this Article XV are and are intended solely for the purposes of defining the relative rights of the holders of the Debt Securities, on the one hand, and the holders of such Senior Debt on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or in the Debt Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Debt of the Company, and the holders of the Debt Securities, the obligation of the Company, which is absolute and unconditional, to pay to the holders of the Debt Securities the principal of and premium, if any, and interest and Liquidated Damages, if any, on the Debt Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the holders of the Debt Securities and creditors of the Company, as the case may be, other than the holders of Senior Debt of the Company nor shall anything herein or therein prevent the Indenture Trustee or the holder of any Debt Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article XV of the holders of such Senior Debt in respect of cash, property or securities of the Company, as the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in this Article XV, the Indenture Trustee, subject to the provisions of Article VI of this Indenture, and the Securityholders shall be entitled to conclusively rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, trustee, agent or other Person making such payment or distribution, delivered to the Indenture Trustee or to the Securityholders, for the purposes of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XV.
SECTION 15.05 INDENTURE TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Securityholder, by such Securityholder's acceptance thereof, authorizes and directs the Indenture Trustee on such Securityholder's behalf to take such action (as the Indenture Trustee, in its discretion, deems necessary or appropriate, upon instruction or otherwise) to effectuate the subordination provided in this Article XV and appoints the Indenture Trustee such Securityholder's attorney-in-fact for any and all such purposes.
SECTION 15.06 NOTICE BY THE COMPANY.
The Company shall give prompt written notice to a Responsible Officer
of the Indenture Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Indenture Trustee in respect of
the Debt Securities pursuant to the provisions of this Article XV.
Notwithstanding the provisions of this Article XV or any other provision of this
Indenture or any Additional Provisions, the Indenture Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Indenture Trustee in respect of the
Debt Securities pursuant to the provisions of this Article XV, unless and until
a Responsible Officer of the Indenture Trustee shall have received written
notice thereof from the Company or a holder or holders of Senior Debt or from
any trustee therefor; and before the receipt of any such written notice, the
Indenture Trustee, subject to the provisions of Article VI of this Indenture,
shall be entitled in all respects to assume that no such facts exist; PROVIDED,
HOWEVER that if the Indenture Trustee shall not have received the notice
provided for in this Section 15.06 at least two Business Days prior to the date
upon which, by the terms hereof, any money may become payable for any purpose
(including, without limitation, the payment of the principal of and premium, if
any, and interest and Liquidated Damages, if any, on any Debt Security, then,
anything herein contained to the contrary notwithstanding, the Indenture Trustee
shall have full power and authority to receive such money and to apply the same
to the purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days prior
to such date.
The Indenture Trustee, subject to the provisions of Article VI of this Indenture, shall be entitled to conclusively rely on a written notice delivered to it by a Person representing himself to be a holder of Senior Debt of the Company (or a trustee or representative on behalf of such holder), as the case may be, to establish that such notice has been given by a holder of such Senior Debt or a trustee on behalf of any such holder or holders. In the event that the Indenture Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of such Senior Debt to participate in any payment or distribution pursuant to this Article XV, the Indenture Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Indenture Trustee as to the amount of such Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article XV, and, if such evidence is not furnished, the Indenture Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
SECTION 15.07 RIGHTS OF THE INDENTURE TRUSTEE; HOLDERS OF SENIOR DEBT.
The Indenture Trustee in its individual capacity shall be entitled to all the rights set forth in this Article XV in respect of any Senior Debt at any time held by it, to the same extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive the Indenture Trustee of any of its rights as such holder.
With respect to the holders of Senior Debt of the Company, the Indenture Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article XV, and no implied covenants or obligations with respect to the holders of such Senior Debt shall be read into this Indenture or any Additional Provisions against the Indenture Trustee. The Indenture Trustee shall not owe or be deemed to owe any fiduciary duty to the holders of such Senior Debt and, subject to the provisions of Article VI of this Indenture, the Indenture Trustee shall not be liable to any holder of such Senior Debt if it shall pay over or deliver to Securityholders, the Company or any other Person money or assets to which any holder of such Senior Debt shall be entitled by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to, the Indenture Trustee under or pursuant to Section 6.06.
SECTION 15.08 SUBORDINATION MAY NOT BE IMPAIRED.
No right of any present or future holder of any Senior Debt of the Company to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, as the case may be, or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company, as the case may be, with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Debt of the Company may, at any time and from time to time, without the consent of or notice to the Indenture Trustee or the Securityholders, without incurring responsibility to the Securityholders and without impairing or releasing the subordination provided in this Article XV or the obligations hereunder of the holders of the Debt Securities to the holders of such Senior Debt, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, such Senior Debt, or otherwise amend or supplement in any manner such Senior Debt or any instrument evidencing the same or any agreement under which such Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing such Senior Debt; (iii) release any Person liable in any manner for the collection of such Senior Debt; and (iv) exercise or refrain from exercising any rights against the Company, as the case may be, and any other Person.
Wilmington Trust Company in its capacity as Indenture Trustee hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers thereunto duly authorized, as of the day and year first above written.
DIME COMMUNITY BANCSHARES, INC.
By: /S/ MICHAEL P. DEVINE
---------------------
Michael P. Devine
President and Chief Operating Officer
|
Wilmington Trust Company, as Indenture Trustee
By: /S/ MARY C. ST. AMAND
---------------------
Mary C. St. Amand
Assistant Vice President
|
FIXED RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBT SECURITY
(FORM OF FACE OF SECURITY)
[IF THIS DEBT SECURITY IS A GLOBAL SECURITY INSERT: THIS DEBT SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS DEBT SECURITY IS EXCHANGEABLE FOR DEBT SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS DEBT SECURITY (OTHER THAN A TRANSFER OF THIS DEBT SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS DEBT SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS DEBT SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS DEBT SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS DEBT SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS DEBT SECURITY OR ANY SUCH INTEREST OR PARTICIPATION HEREIN, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS (i) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF (Y) THE ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE ON WHICH DIME COMMUNITY BANCSHARES. INC. (THE "COMPANY") OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (ii) SUCH LATER DATE,
IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW ONLY (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(2), (3), (7) OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
DEBT SECURITY OR SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO THE COMPANY, IN ACCORDANCE WITH THE INDENTURE, A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS DEBT SECURITY
FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS DEBT SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS DEBT SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF DEBT SECURITIES OR ANY INTEREST THEREIN IN A DENOMINATION OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL NOT BE DEEMED TO BE THE HOLDER OF THIS DEBT SECURITY OR INTEREST HEREIN FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR PREMIUM, IF ANY, OR INTEREST OR LIQUIDATED DAMAGES, IF ANY, ON THIS DEBT SECURITY OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL NOT BE DEEMED TO HAVE ANY INTEREST WHATSOEVER IN THIS DEBT SECURITY.
THE HOLDER OF THIS DEBT SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") (EACH A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY, AND NO
PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD THIS DEBT
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH PURCHASER OR
HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS DEBT
SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THIS DEBT SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF AS
THE CASE MAY BE THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE AND HOLDING
WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS DEBT SECURITY WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE "FDIC"). THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF THE DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES AND IS NOT SECURED.
THE HOLDER OF THIS DEBT SECURITY OR ANY INTEREST HEREIN BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY EACH OF THE REGISTRATION RIGHTS AGREEMENT AND THE LIQUIDATED DAMAGES AGREEMENT, EACH DATED AS OF MARCH 12, 2004, BY AND AMONG THE TRUST, THE COMPANY AND THE INITIAL PURCHASER NAMED THEREIN, AS AMENDED FROM TIME TO TIME.
Fixed Rate Junior Subordinated Deferrable Interest Debt Security
Due 2034, Series A/Series B
of
Dime Community Bancshares, Inc.
Dime Community Bancshares, Inc., Delaware corporation (the "Company," which term includes any successor corporation under the Indenture), for value received, hereby promises to pay to __________________ or registered assigns, the principal sum of __________________ Dollars on April 14, 2034 (the "Maturity Date"), unless previously redeemed, and to pay interest at a fixed rate per annum equal to 7.0% (together with the rate of any applicable Liquidated Damages (as defined below), the "Interest Rate") on the outstanding principal amount hereof from March 19, 2004, or from the most recent interest payment date (each such date, an "Interest Payment Date") to which interest has been paid or duly provided for, quarterly (subject to deferral as set forth herein) in arrears on January 15th, April 15th, July 15th and October 15th of each year, commencing July 15, 2004, and at maturity or any earlier redemption, until the principal hereof shall have become due and payable, and on any overdue principal and (without duplication and to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the same rate per annum, compounded quarterly. The amount of interest payable hereon shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date other than at maturity or any earlier redemption will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities, as defined in said Indenture) is registered at the close of business on the Regular Record Date for such interest installment, which shall be at the close of business on the 15th calendar day prior to the relevant Interest Payment Date, whether or not such day is a Business Day (as defined in the Indenture). Any such interest installment (other than Deferred Interest (as defined herein)) not punctually paid or duly provided for shall forthwith cease to be payable to the holders on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a special record date to be fixed by the Indenture Trustee for the payment of such defaulted interest, notice whereof shall be given to the holders of Debt Securities not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debt Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
Pursuant to the Indenture, in certain circumstances the Company will be required to pay Additional Amounts (as defined in the Indenture) with respect to this Debt Security. Pursuant to the Registration Rights Agreement and the Liquidated Damages Agreement, in certain limited circumstances the Company will be required to pay Liquidated Damages (as defined in the Registration Rights Agreement and the Liquidated Damages Agreement) with respect to this Debt Security.
Payment of the principal of and premium, if any, and interest and Liquidated Damages, if any, on this Debt Security due on the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be, shall be made in immediately available funds against presentation and surrender of this Debt Security at the office or agency of the Indenture Trustee maintained for that purpose in Wilmington, Delaware, or at the office or agency of any other Paying Agent appointed by the Company maintained for that purpose in Wilmington, Delaware or New York, New York. Payment of interest and Liquidated Damages, if any, on this Debt Security due on any Interest Payment Date other than the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be, shall be made at the option of the Company by check mailed to the holder thereof at such address as shall appear in the Debt Security Register or by wire transfer of immediately available funds to an account appropriately designated by the holder hereof. Notwithstanding the foregoing, so long as the holder of this Debt Security is the Institutional Trustee (as defined in the Declaration), payment of the principal of and premium, if any, and interest and Liquidated Damages, if any, on this Debt Security shall be made in immediately available funds when due at such place and to such account as may be designated by the Institutional Trustee. All payments in respect of this Debt Security shall be payable in any coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts.
In the event that any date on which the principal of or premium, if any, or interest or Liquidated Damages, if any, on this Debt Security would otherwise fall on a day that is not a Business Day, then the payment payable on such date will be made on the next succeeding day that is a Business Day, without any interest or other payment in respect of any such delay, all with the same force and effect as if made on such date.
The indebtedness evidenced by this Debt Security is, to the extent provided in the Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior Debt (as defined in the Indenture), and this Debt Security is issued subject to the provisions of the Indenture with respect thereto. Each holder of this Debt Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Indenture Trustee on such holder's behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Indenture Trustee such holder's attorney-in-fact for any and all such purposes. Each holder hereof, by such holder's acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Debt, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
The Company waives diligence, presentment, demand for payment, notice of nonpayment, notice of protest, and all other demands and notices.
By acceptance of this Debt Security, each holder and beneficial owner thereof agrees to treat such Debt Security as indebtedness for United States federal income tax purposes.
This Debt Security shall not be entitled to any benefit under the Indenture or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by or on behalf of the Indenture Trustee.
The provisions of this Debt Security are continued on the reverse side hereof and such provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed and sealed this ___ day of ________, _______.
DIME COMMUNITY BANCSHARES, INC.
By:_____________________________________
Michael P. Devine
President and Chief Operating Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Fixed Rate Junior Subordinated Deferrable Interest Debt Securities, Series A/Series B of Dime Community Bancshares, Inc. referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
Dated:_________________ By:_____________________________________ Authorized Signatory
(FORM OF REVERSE OF SECURITY)
This Security is one of the Junior Subordinated Deferrable Interest Debt Securities, Series A/Series B of the Company (herein sometimes referred to as the "Debt Securities"), specified in the Indenture, all issued or to be issued under and pursuant to an Indenture, dated as of March 19, 2004 (the "Indenture"), duly executed and delivered between the Company and Wilmington Trust Company, as Indenture Trustee (the "Indenture Trustee"), to which Indenture reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Indenture Trustee, the Company and the holders of the Debt Securities. The Debt Securities are limited in aggregate principal amount as specified in the Indenture.
So long as no Event of Default (as defined in the Indenture) has
occurred and is continuing, the Company shall have the right, from time to time
and without causing an Event of Default, to defer payments of interest on the
Debt Securities by extending the interest payment period on the Debt Securities
at any time and from time to time during the term of the Debt Securities, for up
to 20 consecutive quarterly periods (each such extended interest payment period,
together with all previous and further consecutive extensions thereof, is
referred to herein as an "Extension Period"). No Extension Period may end on a
date other than an Interest Payment Date or extend beyond the Maturity Date, any
Optional Redemption Date (as defined herein) or the Special Redemption Date (as
defined herein), as the case may be. During any Extension Period, interest will
continue to accrue on the Debt Securities, and interest on such accrued interest
(such accrued interest and interest thereon referred to herein as "Deferred
Interest") will accrue at an annual rate equal to the Interest Rate, compounded
quarterly from the date such Deferred Interest would have been payable were it
not for the Extension Period, to the extent permitted by applicable law. No
interest or Deferred Interest (except any Additional Amounts (as defined in the
Indenture) that may be due and payable) shall be due and payable during an
Extension Period, except at the end thereof. At the end of any Extension Period,
the Company shall pay all Deferred Interest then accrued and unpaid on the Debt
Securities; PROVIDED, HOWEVER, that during any Extension Period, the Company may
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock, (ii) make any payment of principal of or premium, if any, or
interest or Liquidated Damages, if any, on or repay, repurchase or redeem any
debt securities of the Company that rank PARI PASSU in all respects with or
junior in interest to the Debt Securities or (iii) make any payment under any
guarantees of the Company that rank in all respects PARI PASSU with or junior in
respect to the Guarantee (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company (A) in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of one or more employees, officers, directors or consultants, (B) in
connection with a dividend reinvestment or stockholder stock purchase plan or
(C) in connection with the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock), as
consideration in an acquisition transaction entered into prior to the occurrence
of (i), (ii) or (iii) above, (b) as a result of any exchange or conversion of
any class or series of the Company's capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the Company's capital
stock or of any class or series of the Company's indebtedness for any class or
series of the Company's capital stock, (c) the purchase of fractional interests
in shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock
or the security being converted or exchanged, (d) any declaration of a dividend in connection with any stockholder's rights plan, or the issuance of rights, stock or other property under any stockholder's rights plan, or the redemption or repurchase of rights pursuant thereto or (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks PARI PASSU with or junior to such stock). Prior to the termination of any Extension Period, the Company may further extend such Extension Period, PROVIDED, THAT no Extension Period (including all previous and further consecutive extensions that are part of such Extension Period) shall exceed 20 consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of all Deferred Interest, the Company may commence a new Extension Period, subject to the foregoing requirements. The Company must give the Indenture Trustee notice of its election to begin or extend an Extension Period at least one Business Day prior to the Regular Record Date applicable to the next Interest Payment Date.
Upon the occurrence and continuation of a Tax Event, an Investment Company Event or a Capital Treatment Event (each, a "Special Event"), the Company shall have the right to redeem this Debt Security, at its option, in whole with all other Debt Securities but not in part, at any time, within 90 days following the occurrence of such Special Event (the "Special Redemption Date") at the Special Redemption Price (as defined herein).
The Company shall also have the right to redeem this Debt Security at its option, in whole or (PROVIDED, THAT all accrued and unpaid interest and Liquidated Damages, if any, have been paid on all Debt Securities for all Interest Periods terminating on or prior to such date) from time to time in part, on any Interest Payment Date on or after April 15, 2009 (each, an "Optional Redemption Date"), at the Optional Redemption Price (as defined herein).
Any redemption pursuant to the preceding two paragraphs will be made, subject to receipt by the Company of prior approval from the OTS or such other bank regulatory authority that is the primary holding company regulator of the Company if then required under applicable capital guidelines or policies of the OTS or such other bank regulatory authority that is the primary holding company regulator of the Company, upon not less than 30 days' nor more than 60 days' prior written notice. If the Debt Securities are only partially redeemed by the Company, the Debt Securities will be redeemed pro rata or by any other method utilized by the Indenture Trustee. In the event of redemption of this Debt Security in part only, a new Debt Security or Debt Securities for the unredeemed portion hereof will be issued in the name of the holder hereof upon the cancellation hereof.
"Optional Redemption Price" means an amount in cash equal to 100% of the principal amount of this Debt Security being redeemed plus unpaid interest and Liquidated Damages, if any, accrued thereon to but excluding the related Optional Redemption Date.
"Special Redemption Price" means, with respect to the redemption of any Debt Security following a Special Event, an amount in cash equal to the percentage of the principal amount of this Debt Security that is specified below for the Special Redemption Date plus, in each case, unpaid interest and Liquidated Damages, if any, accrued thereon to but excluding the Special Redemption Date:
Special Redemption Price will be 103.5%
to but excluding April 15, 2005 and
thereafter will be as follows for the
12-month period beginning April 15, Percentage of Principal Amount
----------------------------------- ------------------------------
2005 102.8%
2006 102.1%
2007 101.4%
2008 100.7%
2009 and thereafter 100%
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In case an Event of Default (as defined in the Indenture) shall have occurred and be continuing, the principal of all of the Debt Securities may be declared, and, in certain cases, shall IPSO FACTO become, due and payable, and upon any such declaration of acceleration shall become, due and payable, in each case, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to (i) the Company having received any required regulatory approvals and (ii) the Administrators of Dime Community Capital Trust I having received an Opinion of Counsel to the effect that such liquidation and distribution will not cause the holders of Capital Securities to recognize gain or loss for federal income tax purposes, the Company will have the right at any time to liquidate the Trust and, after satisfaction of liabilities of creditors of the Trust as required by applicable law, to cause the Debt Securities to be distributed to the holders of the Trust Securities in liquidation of the Trust.
The Indenture contains provisions permitting the Company and the Indenture Trustee, with the consent of the holders of a majority in aggregate principal amount of the Debt Securities at the time outstanding affected thereby, as specified in the Indenture, to execute supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner the rights of the holders of the Debt Securities; PROVIDED, HOWEVER, that no such supplemental indenture shall, among other things, without the consent of the holders of each Debt Security then outstanding and affected thereby (i) change the Maturity Date of any Debt Security, or reduce the principal amount thereof or any premium thereon, or reduce the rate or extend the time of payment of interest thereon, or reduce (other than as a result of the maturity or earlier redemption of any such Debt Security in accordance with the terms of the Indenture and such Debt Security) or increase the aggregate principal amount of Debt Securities then outstanding, or change any of the redemption provisions, or make the principal thereof or any interest or premium thereon payable in any coin or currency other than United States Dollars, or impair or affect the right of any holder to institute suit for payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities the holders of which are required to consent to any such supplemental indenture. The Indenture also contains provisions permitting the holders of a majority in aggregate principal amount of the Debt Securities at the time outstanding, on behalf
of the holders of all the Debt Securities, to waive any past default in the performance of any of the covenants contained in the Indenture, or established pursuant to the Indenture, and its consequences, except (a) a default in payments due in respect of any of the Debt Securities, (b) in respect of covenants or provisions of the Indenture which cannot be modified or amended without the consent of the holder of each Debt Security affected, or (c) in respect of the covenants of the Company relating to its ownership of Common Securities of the Trust. Any such consent or waiver by the holder of this Debt Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders and owners of this Debt Security and of any Debt Security issued in exchange herefor or in place hereof (whether by registration of transfer or otherwise), irrespective of whether or not any notation of such consent or waiver is made upon this Debt Security.
No reference herein to the Indenture and no provision of this Debt Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to make all payments due on this Debt Security at the time and place and at the rate and in the money herein prescribed.
As provided in the Indenture and subject to certain limitations herein and therein set forth, this Debt Security is transferable by the holder hereof on the Debt Security Register (as defined in the Indenture) of the Company, upon surrender of this Debt Security for registration of transfer at the office or agency of the Indenture Trustee in Wilmington, Delaware, or at any other office or agency of the Company in Wilmington, Delaware or New York, New York, accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Indenture Trustee duly executed by the holder hereof or such holder's attorney duly authorized in writing, and thereupon one or more new Debt Securities of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be made for any such registration of transfer, but the Company or the Indenture Trustee may require payment of a sum sufficient to cover any tax, fee or other governmental charge payable in relation thereto as specified in the Indenture.
Prior to due presentment for registration of transfer of this Debt Security, the Company, the Indenture Trustee, any Authenticating Agent, any Paying Agent, any transfer agent and the Debt Security registrar may deem and treat the holder hereof as the absolute owner hereof (whether or not this Debt Security shall be overdue and notwithstanding any notice of ownership or writing hereon) for the purpose of receiving payment of the principal of and premium, if any, and interest and Liquidated Damages, if any, on this Debt Security and for all other purposes, and none of the Company, the Indenture Trustee, any Authenticating Agent, any Paying Agent, any transfer agent or any Debt Security registrar shall be affected by any notice to the contrary.
As provided in the Indenture and subject to certain limitations herein and therein set forth, Debt Securities are exchangeable for a like aggregate principal amount of Debt Securities of different authorized denominations, as requested by the holder surrendering the same.
No recourse shall be had for the payment of the principal of or premium, if any, or interest or Liquidated Damages, if any, on this Debt Security or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, stockholder, officer, director, employee or agent, past, present or future, as such, of the Company
or of any predecessor or successor corporation of the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.
All terms used but not defined in this Debt Security shall have the meanings assigned to them in the Indenture.
THIS DEBT SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
CERTIFICATE OF TRUST
OF
DIME COMMUNITY CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF Dime Community Capital Trust I (the "Trust") is being duly executed and filed by the undersigned on behalf of the Trust to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C.ss.ss.3801 et seq.) (the "Act").
1. NAME. The name of the statutory trust being formed is Dime Community Capital Trust I.
2. TRUSTEE. The name and business address of the trustee of the Trust with a principal place of business in the State of Delaware is as follows:
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890 ATTN: Corporate Trust Administration
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Trust in accordance with Section 3811(a) of the Act.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
trustee of the Trust
By: /s/ Denise M. Geran
-------------------------
Denise M. Geran
Vice President
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DECLARATION OF TRUST
OF
DIME COMMUNITY CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of March 11, 2004 (this "Declaration"), by and between Dime Community Bancshares, Inc., a Delaware corporation, as sponsor (the "Sponsor"), and Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee (the "Trustee"). The Sponsor and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Dime Community Capital Trust I" (the "Trust"), in which name the Trustee or the Sponsor, to the extent provided herein, may conduct the business of the Trust, make and execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the Trust the sum of $10. The Trustee hereby acknowledges receipt of such amount in trust from the Sponsor, which amount shall constitute the initial trust estate. The Trustee hereby declares that it will hold the trust estate in trust for the Sponsor. It is the intention of the parties hereto that the Trust created hereby constitute a statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C ss. 3801, ET SEQ. (the "Statutory Trust Act"), and that this Declaration constitute the governing instrument of the Trust. The Trustee is hereby authorized and directed to execute and file a certificate of trust with the Secretary of State of the State of Delaware in the form attached to this Declaration.
3. The Sponsor and the Trustee will enter into an Amended and Restated Declaration of Trust satisfactory to each such party to provide for the contemplated operation of the Trust created hereby and the issuance by the Trust of the Capital Securities and Common Securities referred to therein. Prior to the execution and delivery of such Amended and Restated Declaration of Trust (i) the Trustee shall not have any duty or obligation hereunder or with respect to the trust estate, except as otherwise required by applicable law, and (ii) the Sponsor shall take or cause to be taken any action as may be necessary to obtain prior to such execution and delivery any licenses, consents or approvals required by applicable law or otherwise. Notwithstanding the foregoing, the Trustee may take all actions which the Sponsor deems necessary, convenient or incidental to effect the transactions contemplated herein. The Trustee shall not have any duty or obligation under or in connection with this Declaration or any document contemplated hereby, except as expressly provided by the terms of this Declaration, and no implied duties or obligations shall be read into this Declaration against the Trustee. The right of the Trustee to perform any discretionary act enumerated herein shall not be construed as a duty.
4. The Sponsor hereby agrees to (i) reimburse the Trustee for all reasonable expenses (including reasonable fees and expenses of counsel and other experts), (ii) indemnify, defend and hold harmless the Trustee and the officers, directors, employees and agents of the Trustee (collectively, including the Trustee in its individual
capacity, the "Indemnified Persons") from and against any and all losses, damages, liabilities, claims, actions, suits, costs, expenses, disbursements (including the reasonable fees and expenses of counsel), taxes and penalties of any kind and nature whatsoever (collectively, "Expenses"), to the extent that such Expenses arise out of or are imposed upon or asserted at any time against such Indemnified Persons with respect to the performance of this Declaration, the creation, operation, administration or termination of the Trust, or the transactions contemplated hereby; PROVIDED, HOWEVER, that the Sponsor shall not be required to indemnify an Indemnified Person for Expenses to the extent such Expenses result from the willful misconduct, bad faith or gross negligence of such Indemnified Person, and (iii) advance to each such Indemnified Person Expenses incurred by such Indemnified Person, in defending any claim, demand, action, suit or proceeding with respect to the performance of this Declaration, the creation, operation, administration or termination of the Trust or the transactions contemplated hereby prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking, by or on behalf of such Indemnified Person, to repay such amount if it shall be determined that such Indemnified Person is not entitled to be indemnified therefor under this Section 4. The obligations of the Sponsor under this Section 4 shall survive the resignation or removal of the Trustee, shall survive the termination, amendment, supplement, and/or restatement of this Declaration, and shall survive the transfer by the Sponsor of any or all of its interest in the Trust pursuant to Section 5 below or otherwise.
5. The Sponsor, as sponsor of the Trust, is hereby authorized, in its discretion, (i) to prepare, execute and file on behalf of the Trust, such applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers and documents that shall be necessary or desirable to register or establish the exemption from registration of the Capital Securities of the Trust under the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable; (ii) to negotiate, execute, deliver and perform on behalf of the Trust one or more placement agent agreements, dealer/manager agreements, escrow agreements, subscription agreements and other similar or related agreements providing for or relating to the sale and issuance of the Capital Securities of the Trust and/or any other interests in the Trust; (iii) to prepare, execute and deliver on behalf of the Trust any and all documents, certificates, papers, instruments and other writings as it deems desirable in connection with any of the foregoing; and (iv) to prepare, execute and deliver letters or documents to, or instruments for filing with, a depository relating to the Capital Securities of the Trust as it deems necessary or desirable.
In the event that any filing referred to in this Section 5 is required by the rules and regulations of the Securities and Exchange Commission (the "Commission") or state securities or Blue Sky laws to be executed on behalf of the Trust by a trustee, the Trustee, in its capacity as a trustee of the Trust, so required to execute such filings is hereby authorized and, to the extent so required, directed to join in any such filing and to execute on behalf of the Trust any and all of the foregoing, it being understood that the Trustee, in its capacity as a trustee of the Trust, shall not be required to join in any such filing or execute on behalf of the Trust any such document unless required to do so by the rules and regulations of the Commission or applicable state securities or Blue Sky laws.
6. The Trustee is authorized to take such action or refrain from taking such action under this Declaration as it may be directed in writing by the Sponsor from time to time; PROVIDED, HOWEVER, that the Trustee shall not be required to take or refrain from taking any such action if the Trustee shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Trustee in personal liability or is contrary to the terms of this Declaration or of any document contemplated hereby to which the Trust or the Trustee is a party or is otherwise contrary to law. If at any time the Trustee determines that it requires or desires guidance regarding the application of any provision of this Declaration or any other document, or regarding compliance with any direction it received hereunder, then the Trustee may deliver a notice to the Sponsor requesting written instructions as to the course of action desired by the Sponsor, and such instructions shall constitute full and complete authorization and protection for actions taken and other performance by the Trustee in reliance thereon. Until the Trustee has received such instructions after delivering such notice, it may refrain from taking any action with respect to the matters described in such notice.
7. This Declaration may be executed in two or more counterparts.
8. The number of trustees of the Trust initially shall be one, and thereafter the number of trustees of the Trust shall be such number as shall be fixed from time to time by a written instrument signed by the Sponsor which may increase or decrease the number of trustees of the Trust; PROVIDED, HOWEVER, to the extent required by the Statutory Trust Act, there shall at all times be one trustee of the Trust that shall either be a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable Delaware law. Subject to the foregoing, the Sponsor is entitled to appoint or remove without cause any trustee of the Trust at any time. Any trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
9. This Declaration shall be governed by, and construed in accordance with, the laws of the State of Delaware (without regard to conflict of laws principles).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust to be duly executed as of the day and year first above written.
DIME COMMUNITY BANCSHARES, INC.,
as Sponsor
By: /s/ Kenneth J. Mahon
-------------------------------
Kenneth J. Mahon
Chief Financial Officer
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WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Denise M. Geran
-------------------------------
Denise M. Geran
Vice President
|
SECOND AMENDED AND RESTATED DECLARATION OF TRUST
OF
Dime Community Capital Trust I
Dated as of July 29, 2004
TABLE OF CONTENTS
Page
----
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions....................................................1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application..............................11
Section 2.2. List of Holders of Trust Securities...........................11
Section 2.3. Reports by the Institutional Trustee..........................11
Section 2.4. Periodic Reports to Institutional Trustee.....................12
Section 2.5. Evidence of Compliance with Conditions Precedent..............12
Section 2.6. Events of Default; Waiver.....................................12
Section 2.7. Default; Notice...............................................13
ARTICLE III
ORGANIZATION
Section 3.1. Name..........................................................14
Section 3.2. Office........................................................14
Section 3.3. Purpose.......................................................14
Section 3.4. Authority.....................................................14
Section 3.5. Title to Property of the Trust................................15
Section 3.6. Powers and Duties of the Trustees and the Administrators......15
Section 3.7. Prohibition of Actions by the Trust and the Trustees..........20
Section 3.8. Powers and Duties of the Institutional Trustee................21
Section 3.9. Certain Duties and Responsibilities of the Trustees and
the Administrators............................................23
Section 3.10. Certain Rights of Institutional Trustee.......................25
Section 3.11. Delaware Trustee..............................................27
Section 3.12. Execution of Documents........................................27
Section 3.13. Not Responsible for Recitals or Issuance of Trust Securities..27
Section 3.14. Duration of Trust.............................................27
Section 3.15. Mergers.......................................................27
ARTICLE IV
SPONSOR
Section 4.1. Sponsor's Purchase of Common Securities.......................29
Section 4.2. Responsibilities of the Sponsor...............................29
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ARTICLE V
TRUSTEES AND ADMINISTRATORS
Section 5.1. Number of Trustees............................................30
Section 5.2. Delaware Trustee..............................................30
Section 5.3. Institutional Trustee; Eligibility............................31
Section 5.4. Administrators................................................31
Section 5.5. Appointment, Removal and Resignation of the Trustees and
the Administrators............................................32
Section 5.6. Vacancies Among Trustees......................................33
Section 5.7. Effect of Vacancies...........................................34
Section 5.8. Meetings of the Trustees and the Administrators...............34
Section 5.9. Delegation of Power...........................................34
Section 5.10. Merger, Conversion, Consolidation or Succession to Business...35
ARTICLE VI
DISTRIBUTIONS
Section 6.1. Distributions.................................................35
ARTICLE VII
ISSUANCE OF TRUST SECURITIES
Section 7.1. General Provisions Regarding Trust Securities.................35
Section 7.2. Paying Agent, Transfer Agent, Calculation Agent and
Registrar.....................................................36
Section 7.3. Form and Dating...............................................37
Section 7.4. Temporary Certificates........................................39
Section 7.5. Mutilated, Destroyed, Lost or Stolen Certificates.............39
Section 7.6. Cancellation..................................................40
Section 7.7. Rights of Holders.............................................40
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1. Dissolution and Termination of Trust..........................42
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1. Transfer of Securities........................................43
Section 9.2. Transfer Procedures and Restrictions..........................43
Section 9.3. Deemed Security Holders.......................................51
Section 9.4. Book-Entry Interests..........................................51
Section 9.5. Appointment of Successor Clearing Agency......................52
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS
Section 10.1. Liability.....................................................52
ii
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Section 10.2. Exculpation...................................................52
Section 10.3. Fiduciary Duty................................................53
Section 10.4. Indemnification...............................................53
Section 10.5. Outside Businesses............................................56
Section 10.6. Compensation; Fee.............................................57
ARTICLE XI
ACCOUNTING
Section 11.1. Fiscal Year...................................................57
Section 11.2. Certain Accounting Matters....................................57
Section 11.3. Banking.......................................................58
Section 11.4. Withholding...................................................58
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1. Amendments....................................................59
Section 12.2. Meetings of the Holders of the Trust Securities; Action
by Written Consent............................................61
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
Section 13.1. Representations and Warranties of Institutional Trustee.......62
Section 13.2. Representations and Warranties of Delaware Trustee............63
ARTICLE XIV
REGISTRATION RIGHTS
Section 14.1. Registration Rights Agreement; Liquidated Damages.............64
ARTICLE XV
MISCELLANEOUS
Section 15.1. Notices.......................................................64
Section 15.2. Governing Law.................................................65
Section 15.3. Submission to Jurisdiction....................................66
Section 15.4. Intention of the Parties......................................66
Section 15.5. Headings......................................................66
Section 15.6. Successors and Assigns........................................66
Section 15.7. Partial Enforceability........................................66
Section 15.8. Counterparts..................................................67
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ANNEXES AND EXHIBITS
ANNEX I Terms of Fixed Rate, Series A/Series B Capital Securities and
Common Securities
EXHIBIT A-1-A Form of Capital Security Certificate, Series A
EXHIBIT A-1-B Form of Capital Security Certificate, Series B
EXHIBIT A-2 Form of Common Security Certificate
EXHIBIT B Form of Transferee Certificate to be Executed by Accredited
Investors
EXHIBIT C Form of Transferor Certificate to be Executed for QIBs
EXHIBIT D Form of Transferee Certificate to be Executed by Non-U.S.
Persons
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CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of Section of
1939, as Amended Declaration
---------------- -----------
310(a) ...................................... 5.3
310(b) ...................................... 5.3(c), 5.3(d)
311(a) ...................................... 2.2(b)
311(b) ...................................... 2.2(b)
312(a) ...................................... 2.2(a)
312(b) ...................................... 2.2(b)
313 ...................................... 2.3
314(a) ...................................... 2.4; 2.7(c);
3.6(a)(i)(O)
314(c) ...................................... 2.5
315(a) ...................................... 3.6(j); 3.9
315(b) ...................................... 2.7(a)
315(c) ...................................... 3.9(a)
315(d) ...................................... 3.9(b)
316(a) ...................................... 2.6
316(c) ...................................... 3.6(a)(i)(M)
317(a) ...................................... 3.8(e); 3.8(i);
3.6(a)(ii)(K)
317(b) ...................................... 3.8(i); 7.4
318 ...................................... 2.1
------------------
|
* This Cross-Reference Table does not constitute part of this Declaration and shall not affect the interpretation of any of its terms or provisions.
SECOND AMENDED AND RESTATED DECLARATION OF TRUST
OF
Dime Community Capital Trust I
July 29, 2004
SECOND AMENDED AND RESTATED DECLARATION OF TRUST (as amended or supplemented from time to time in accordance with the terms hereof, this "Declaration"), dated and effective as of July 29, 2004, by the Trustees (as defined herein), the Administrators (as defined herein), the Sponsor (as defined herein) and the Holders from time to time of undivided beneficial interests in the assets of the Trust (as defined herein) to be issued pursuant to this Declaration.
WHEREAS, certain of the Trustees and the Sponsor established Dime Community Capital Trust I (the "Trust"), a statutory trust created under the Statutory Trust Act (as defined herein), pursuant to a Declaration of Trust, dated as of March 11, 2004 (the "Original Declaration"), and a Certificate of Trust filed with the Secretary of State of the State of Delaware on March 12, 2004, for the sole purpose of issuing and selling the Trust Securities (as defined herein) representing undivided beneficial interests in the assets of the Trust, investing the proceeds thereof in the Debt Securities (as defined herein) of the Debt Security Issuer (as defined herein) and engaging in those activities necessary, advisable or incidental thereto;
WHEREAS, the Trustees and the Sponsor amended and restated the Original Declaration in its entirety by entering into an Amended and Restated Declaration of Trust, dated March 19, 2004;
WHEREAS, the Sponsor and the Trust desire to amend and restate the Amended and Restated Declaration of Trust in its entirety as set forth herein to provide for, among other things, (i) the authorization of additional Paying Agents, and (ii) the duties and responsibilities of Paying Agents other than the Institutional Trustee; and
NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a statutory trust under the Statutory Trust Act, that this Declaration constitutes the governing instrument of such statutory trust, and that all assets contributed to the Trust will be held in trust for the benefit of the holders, from time to time, of the Trust Securities, subject to the provisions of this Declaration, and, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each party, for the benefit of the other parties and for the benefit of the Holders, hereby amends and restates the Amended and Restated Declaration of Trust in its entirety and agrees as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1. DEFINITIONS. Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the preamble above or elsewhere herein have the respective meanings assigned to them in this Section 1.1 or, if not defined in this Section 1.1 or elsewhere herein, in the Indenture;
(b) a term defined anywhere in this Declaration has the same meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are to this Declaration and each Annex and Exhibit hereto, as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as defined herein) has the same meaning when used in this Declaration unless otherwise defined in this Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Additional Amounts" has the meaning set forth in Section 3.06 of the Indenture.
"Administrative Action" has the meaning set forth in paragraph 4(a) of Annex I.
"Administrators" means each of Kenneth J. Mahon, Michael Pucella and Lance Bennett, solely in such Person's capacity as Administrator of the Trust continued hereunder and not in such Person's individual capacity, or such Administrator's successor in interest in such capacity, or any successor appointed as herein provided.
"Affiliate" shall have the meaning given to that term in Rule 405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to bind such Person.
"Bankruptcy Event" means, with respect to any Person:
(a) a court having jurisdiction in the premises enters a decree or order for relief in respect of such Person in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoints a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or for any substantial part of its property, or orders the winding-up or liquidation of its affairs, and such decree, appointment or order remains unstayed and in effect for a period of 90 consecutive days; or
(b) such Person commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, consents to the entry of an order for relief in an involuntary case under any such law, or consents to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of such Person or of any substantial part of its property, or makes any general assignment for the benefit of creditors, or fails generally to pay its debts as they become due.
"Book-Entry Interest" means a beneficial interest in the Global Capital Security registered in the name of a Clearing Agency or its nominee, ownership and transfers of which shall be maintained and made through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in Wilmington, Delaware or New York, New York are permitted or required by law or executive order to close.
"Capital Securities" means, collectively, the Series A Capital Securities and the Series B Capital Securities.
"Capital Security Beneficial Owner" means, with respect to a Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry Interest, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency).
"Capital Treatment Event" has the meaning set forth in paragraph 4(a) of Annex I.
"Certificate" means any certificate evidencing Trust Securities.
"Certificate of Trust" means the certificate of trust filed with the Secretary of State of the State of Delaware with respect to the Trust, as amended and restated from time to time.
"Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Exchange Act that is acting as depositary for the Capital Securities and in whose name or in the name of a nominee of that organization shall be registered a global certificate and which shall undertake to effect book entry transfers of the Capital Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Clearing Agency effects book entry transfers of Trust Securities deposited with the Clearing Agency.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation.
"Commission" means the United States Securities and Exchange Commission.
"Common Securities" has the meaning set forth in Section 7.1(a).
"Company Indemnified Person" means (a) any Administrator, (b)
any Affiliate of any Administrator, (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrator or
(d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Institutional Trustee at which its corporate trust business shall be principally administered, which at all times shall be located within the United States and at the time of execution of this Declaration shall be Rodney Square North, 1100 North Market Street, Wilmington, DE 19890-0001, Attention: Corporate Trust Administration.
"Coupon Rate" has the meaning set forth in paragraph 2(a) of Annex I.
"Covered Person" means (a) any Administrator, officer, director, shareholder, partner, member, representative, employee or agent of the Trust or the Trust's Affiliates or (b) any Holder of Trust Securities.
"Debt Security Issuer" means Dime Community Bancshares, Inc., a Delaware corporation, in its capacity as issuer of the Debt Securities under the Indenture, and any permitted successor under the Indenture.
"Debt Securities" means, collectively, the Series A Debt Securities and the Series B Debt Securities.
"Default" means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
"Deferred Interest" means any interest on the Debt Securities that would have been overdue and unpaid for more than one Distribution Payment Date but for the imposition of an Extension Period, and the interest that shall accrue (to the extent that the payment of such interest is legally enforceable) on such interest at the Coupon Rate applicable during such Extension Period, compounded quarterly from the date on which such Deferred Interest would otherwise have been due and payable until paid or made available for payment.
"Definitive Capital Securities" means any Capital Securities in certificated form issued by the Trust substantially in the form of Exhibit A-1-A.
"Definitive Common Security" means a definitive Certificate registered in the name of the Holder representing a Common Security substantially in the form of Exhibit A-2.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Trust Securities in accordance with Section 6.1.
"Distribution Payment Date" has the meaning set forth in paragraph 2(c) of Annex I.
"Distribution Period" has the meaning set forth in paragraph 2(a) of Annex I.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" means the occurrence of an Indenture Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation.
"Exchange Offer" means the offer that may be made pursuant to the Registration Rights Agreement (i) by the Trust to exchange Series A Capital Securities for Series B Capital Securities and (ii) by the Debt Security Issuer to exchange Series A Debt Securities for Series B Debt Securities and to execute the Series B Guarantee in respect of the Series B Capital Securities.
"Extension Period" has the meaning set forth in paragraph 2(b) of Annex I.
"Federal Reserve" means the Board of Governors of the Federal Reserve System.
"Fiduciary Indemnified Person" shall mean each of the Institutional Trustee (including in its individual capacity), the Delaware Trustee (including in its individual capacity), any Affiliate of the Institutional Trustee or the Delaware Trustee, and any officers, directors, shareholders, members, partners, employees, representatives, custodians, nominees or agents of the Institutional Trustee or the Delaware Trustee.
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Capital Security" has the meaning set forth in Section 7.3(b).
"Guarantee" means, collectively, the Series A Guarantee and the Series B Guarantee.
"Holder" means a Person in whose name a Certificate representing a Trust Security is registered on the Securities Register maintained by or on behalf of the Registrar, such Person being a beneficial owner within the meaning of the Statutory Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of the Closing Date, between the Debt Security Issuer and the Indenture Trustee, and any indenture supplemental thereto pursuant to which the Debt Securities are to be issued.
"Indenture Event of Default" means an "Event of Default" as defined in the Indenture.
"Indenture Trustee" means Wilmington Trust Company, a Delaware banking corporation, not in its individual capacity but solely as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee.
"Institutional Trustee" means the Trustee meeting the eligibility requirements set forth in Section 5.3.
"Investment Company" means an investment company as defined in the Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in paragraph 4(a) of Annex I.
"Issuer Order" shall mean a written order signed in the name of the Trust by an Administrator and delivered to the Institutional Trustee.
"Legal Action" has the meaning set forth in Section 3.8(e).
"Liquidated Damages Agreement" means the Liquidated Damages Agreement, dated as of March 12, 2004, by and among the Company, the Trust and the Initial Purchaser named therein, as such agreement may be amended, modified or supplemented from time to time.
"Liquidation" has the meaning set forth in paragraph 3 of Annex I.
"Liquidation Amount" means the liquidation amount of $1,000 per Trust Security.
"Liquidation Distribution" has the meaning set forth in paragraph 3 of Annex I.
"List of Holders" has the meaning set forth in Section 2.2.
"Majority in Liquidation Amount of the Trust Securities" means Holders of outstanding Trust Securities voting together as a single class or, as the context may require, Holders of outstanding Capital Securities or Holders of outstanding Common Securities voting separately as a class, who are the record owners of more than 50% of the aggregate Liquidation Amount (including the amount that would be paid upon the redemption, liquidation or otherwise on the date upon which the voting percentages are determined, plus unpaid Distributions accrued thereon to such date) of all outstanding Trust Securities of the relevant class.
"Maturity Date" has the meaning set forth in paragraph 4(a) of Annex I.
"Maturity Redemption Price" has the meaning set forth in paragraph 4(a) of Annex I.
"Officers' Certificate" means a certificate signed by the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President or any Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary of the Company, and delivered to the Institutional Trustee. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Declaration shall include:
(a) a statement that each Authorized Officer or Person, as the case may be, signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation undertaken by each Authorized Officer or Person, as the case may be, in rendering the Officers' Certificate;
(c) a statement that each Authorized Officer or Person, as the case may be, has made such examination or investigation as, in his or her opinion, is necessary to enable such Authorized Officer or Person, as the case may be, to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each Authorized Officer or Person, as the case may be, such condition or covenant has been complied with.
"Offering Memorandum" has the meaning set forth in Section 3.6(a)(i)(B).
"Opinion of Counsel" means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or may be other counsel reasonably acceptable to the Institutional Trustee.
"Optional Redemption Date" has the meaning set forth in paragraph 4(a) of Annex I.
"Optional Redemption Price" has the meaning set forth in paragraph 4(a) of Annex I.
"OTS" means the Office of Thrift Supervision or any successor regulatory agency.
"Paying Agent" has the meaning set forth in Section 7.2.
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.
"PORTAL" has the meaning set forth in Section 2.6(a)(i)(F).
"Property Account" has the meaning set forth in Section 3.8(c).
"Pro Rata" has the meaning set forth in paragraph 8 of Annex I.
"Purchase Agreement" means the Purchase Agreement, dated March 12, 2004, by and among the Trust, the Debt Security Issuer, The Dime Savings Bank of Williamsburgh and the Initial Purchaser named therein.
"QIB" means a "qualified institutional buyer" as defined under Rule 144A.
"Quorum" means a majority of the Administrators or, if there are only two Administrators, both of them.
"Redemption/Distribution Notice" has the meaning set forth in paragraph 4(e) of Annex I.
"Registrar" has the meaning set forth in Section 7.2.
"Registration Rights Agreement" means the Registration Rights Agreement, dated as of March 12, 2004, by and among the Trust, the Debt Security Issuer and the Initial Purchaser named therein, as amended from time to time.
"Registration Statement" has the meaning set forth in the Registration Rights Agreement.
"Relevant Trustee" has the meaning set forth in Section 5.5(a).
"Resale Restriction Termination Date" means, with respect to any Capital Security, the date which is the later of (i) two years (or such shorter period of time as permitted by Rule 144(k) under the Securities Act) after the later of (y) the date of original issuance of such Capital Security and (z) the last date on which the Trust or any Affiliate of the Trust was the Holder of such Capital Security (or any predecessor thereto) and (ii) such later date, if any, as may be required by any subsequent change in applicable law.
"Responsible Officer" means, with respect to the Institutional Trustee, any officer within the Corporate Trust Office of the Institutional Trustee with direct responsibility for the administration of this Declaration, including any vice-president, any assistant vice-president, any secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or other officer of the Corporate Trust Office of the Institutional Trustee customarily performing functions similar to those performed by any of the above designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject.
"Restricted Capital Securities" means Capital Securities required by Section 9.2 to contain a Restricted Securities Legend.
"Restricted Definitive Capital Securities" means Restricted Capital Securities that are also Definitive Capital Securities.
"Restricted Securities Legend" has the meaning set forth in
Section 9.2(h).
"Rule 144A" means Rule 144A under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereinafter adopted by the Commission.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act.
"Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor legislation.
"Securities Register" has the meaning set forth in Section 7.2(a).
"Series A Capital Securities" has the meaning specified in
Section 7.1(a).
"Series A Debt Securities" means the Fixed Rate Junior Subordinated Deferrable Interest Debt Securities due April 14, 2034, Series A, of the Debt Security Issuer issued pursuant to the Indenture.
"Series A Guarantee" means the Series A Guarantee, dated as of the Closing Date, by Dime Community Bancshares, Inc., in respect of the Series A Capital Securities.
"Series B Capital Securities" has the meaning specified in
Section 7.1(a).
"Series B Debt Securities" means the Fixed Rate Junior Subordinated Deferrable Interest Debt Securities due April 14, 2034, Series B, of the Debt Security Issuer to be issued pursuant to the Indenture in connection with the Exchange Offer.
"Series B Guarantee" means the Series B Guarantee to be entered into in connection with the Exchange Offer by Dime Community Bancshares, Inc., in respect of the Series B Capital Securities.
"Special Event" has the meaning set forth in paragraph 4(a) of Annex I.
"Special Redemption Date" has the meaning set forth in paragraph 4(a) of Annex I.
"Special Redemption Price" has the meaning set forth in paragraph 4(a) of Annex I.
"Sponsor" means Dime Community Bancshares, Inc., a Delaware corporation, or any permitted successor of the Debt Security Issuer under the Indenture, in its capacity as sponsor of the Trust.
"Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code ss. 3801 et seq., as it may be amended from time to time, or any successor legislation.
"Successor Delaware Trustee" has the meaning set forth in
Section 5.5(e).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Institutional Trustee" has the meaning set forth in
Section 5.5(b).
"Successor Securities" has the meaning set forth in Section 3.15(b)(i)(B).
"Super Majority" has the meaning set forth in paragraph 5(b) of Annex I.
"Tax Event" has the meaning set forth in paragraph 4(a) of Annex I.
"10% in Liquidation Amount of the Capital Securities" means Holders of outstanding Trust Securities voting together as a single class or, as the context may require, Holders of outstanding Capital Securities or Holders of outstanding Common Securities voting separately as a class, who are the record owners of 10% or more of the aggregate Liquidation Amount (including the stated amount that would be paid upon the redemption, liquidation or otherwise on the date upon which the voting percentages are determined, plus unpaid Distributions accrued thereon to such date) of all outstanding Trust Securities of the relevant class.
"Transfer Agent" has the meaning set forth in Section 7.2.
"Treasury Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from time-to-time, or any successor legislation.
"Trust Property" means (a) the Debt Securities, (b) any cash on deposit in, or owing to, the Property Account and (c) all proceeds and rights in respect of the foregoing and any other property and assets for the time being held or deemed to be held by the Institutional Trustee pursuant to the trusts of this Declaration.
"Trust Securities" means, collectively, the Common Securities and the Capital Securities.
"Trustee" or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder.
"U.S. Person" means a United States Person as defined in
Section 7701(a)(30) of the Code.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust Indenture Act that are required to be part of this Declaration in order for this Declaration to be qualified under the Trust Indenture Act and shall, to the extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration limits, qualifies or conflicts with the duties imposed by ss. 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration shall not affect the nature of the Trust Securities as representing undivided beneficial interests in the assets of the Trust.
Section 2.2. LIST OF HOLDERS OF TRUST SECURITIES.
(a) Each of the Sponsor and the Administrators on behalf of the Trust shall provide the Institutional Trustee, unless the Institutional Trustee is Registrar for the Trust Securities, (i) within 14 days after each record date for payment of Distributions, a list, in such form as the Institutional Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders") as of such record date, PROVIDED, THAT, neither the Sponsor nor the Administrators on behalf of the Trust shall be obligated to provide such List of Holders at any time that the List of Holders does not differ from the most recent List of Holders given to the Institutional Trustee by the Sponsor and the Administrators on behalf of the Trust, and (ii) at any other time, within 30 days of receipt by the Trust of a written request for a List of Holders as of a date no more than 14 days before such List of Holders is given to the Institutional Trustee. The Institutional Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in Lists of Holders given to it or which it receives in the capacity as Paying Agent if acting in such capacity), PROVIDED, THAT, the Institutional Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under ss. 310(b), 311(a) and 312(b) of the Trust Indenture Act.
Section 2.3. REPORTS BY THE INSTITUTIONAL TRUSTEE.
Within 60 days after the date hereof, and no later than the anniversary date hereof in each succeeding year, the Institutional Trustee shall provide to the Holders of the Capital Trust Securities such reports as are required by ss. 313 of the Trust Indenture Act, if any, in the form and in the manner provided by ss. 313 of the Trust Indenture Act. The Institutional Trustee shall also comply with the requirements of ss. 313(d) of the Trust Indenture Act.
Section 2.4. PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE.
Each of the Sponsor and the Administrators on behalf of the Trust shall provide to the Institutional Trustee and the Commission such documents, reports and information as are required by ss. 314 (if any) of the Trust Indenture Act and shall provide to the Institutional Trustee the compliance certificate required by ss. 314 of the Trust Indenture Act in the form, in the manner and at the times required by ss. 314 of the Trust Indenture Act.
Section 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Administrators on behalf of the Trust shall provide to the Institutional Trustee such evidence of compliance with any conditions precedent provided for in this Declaration that relate to any of the matters set forth in ss. 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to ss. 3l4(c)(1) of the Trust Indenture Act may be given in the form of an Officers' Certificate.
Section 2.6. EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in Liquidation Amount of Capital Securities may, by vote, on behalf of the Holders of all of the Capital Securities, waive any past Event of Default in respect of the Capital Securities and its consequences, PROVIDED, THAT if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in aggregate principal amount of the holders of the Debt Securities (a "Super Majority") to be waived under the Indenture, the Event of Default under this Declaration may only be waived by the vote of the Holders of at least the proportion in aggregate Liquidation Amount of the Capital Securities that the relevant Super Majority represents of the aggregate principal amount of the Debt Securities outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of ss. 3l6(a)(l)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration and the Trust Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such Default shall cease to exist, and any Event of Default with respect to the Capital Securities arising therefrom shall be deemed to have been cured, for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other Default or an Event of Default with respect to the Capital Securities or impair any right consequent thereon. Any waiver by the Holders of the Capital Securities of an Event of Default with respect to the Capital Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Event of Default with respect to the Common Securities for all purposes of this Declaration without any further action.
(b) The Holders of a Majority in Liquidation Amount of the Common Securities may, by vote, on behalf of the Holders of all of the Common Securities, waive any
past Event of Default with respect to the Common Securities and its consequences, PROVIDED, THAT if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default under this Declaration shall also not be waivable; or except where the Holders of the Common Securities are deemed to have waived such Event of Default under this Declaration as provided below in this Section 2.6(b), the Event of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived, except where the Holders of the Common Securities are deemed to have waived such Event of Default under this Declaration as provided below in this Section 2.6(b), the Event of Default under this Declaration may only be waived by the vote of the Holders of at least the proportion in aggregate Liquidation Amount of the Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Debt Securities outstanding;
PROVIDED FURTHER, each Holder of Common Securities will be deemed to have waived any such Event of Default and all Events of Default with respect to the Common Securities and their consequences if all Events of Default with respect to the Capital Securities have been cured, waived or otherwise eliminated, and until such Events of Default have been so cured, waived or otherwise eliminated, the Institutional Trustee will be deemed to be acting solely on behalf of the Holders of the Capital Securities and only the Holders of the Capital Securities will have the right to direct the Institutional Trustee in accordance with the terms of the Trust Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Declaration and the Trust Securities, as permitted by the Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon such waiver, any such Default shall cease to exist and any Event of Default with respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other Default or Event of Default with respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Institutional Trustee, at the direction of the Holders of the Capital Securities, constitutes a waiver of the corresponding Event of Default under this Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of ss. 316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration and the Trust Securities, as permitted by the Trust Indenture Act.
Section 2.7. DEFAULT; NOTICE.
(a) The Institutional Trustee shall, within 90 days after a Responsible Officer has actual knowledge of the occurrence of a Default with respect to the Trust Securities, transmit by mail, first class postage prepaid, to the Holders, notices of all such Defaults, unless such Defaults have been cured before the giving of such notice or previously waived; PROVIDED, HOWEVER, that except in the case of a Default arising from the nonpayment of principal of, or
premium, if any, or interest or Liquidated Damages, if any, on any of the Debt Securities, the Institutional Trustee shall be protected in withholding such notice if and so long as a Responsible Officer in good faith determines that the withholding of such notice is in the interests of the Holders.
(b) The Institutional Trustee shall not be deemed to have knowledge of any Default or Event of Default except as provided in Section 3.10(m) hereof.
(c) Within ten Business Days after a Responsible Officer has actual knowledge of the occurrence of any Event of Default, the Institutional Trustee shall transmit notice of such Event of Default to the Holders of the Capital Securities, the Administrators and the Sponsor, unless such Event of Default shall have been cured or waived. The Sponsor and the Administrators shall file annually with the Institutional Trustee a certification as to whether or not they are in compliance with all the conditions and covenants applicable to them under this Declaration.
ARTICLE III
ORGANIZATION
Section 3.1. NAME. The Trust is named "Dime Community Capital Trust I," as such name may be modified from time to time by the Administrators following written notice to the Institutional Trustee and the Holders of the Trust Securities. The Trust's activities may be conducted under the name of the Trust or any other name deemed advisable by the Administrators.
Section 3.2. OFFICE. The address of the principal office of the Trust, which shall be in a state of the United States or the District of Columbia, is c/o Dime Community Bancshares, Inc., 209 Havemeyer Street, Brooklyn, New York 11211. On ten Business Days' prior written notice to the Institutional Trustee and the Holders of the Trust Securities, the Administrators may designate another principal office, which shall be in a state of the United States or the District of Columbia.
Section 3.3. PURPOSE. The exclusive purposes and functions of the Trust are (a) to issue and sell the Trust Securities, (b) to invest the gross proceeds from such sale in the Debt Securities and (c) except as otherwise limited herein, to engage in only those other activities deemed necessary, advisable or incidental thereto by the Institutional Trustee, including, without limitation, those activities specified in this Declaration. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust to fail to be classified for United States federal income tax purposes as a grantor trust.
Section 3.4. AUTHORITY. Except as specifically provided in this Declaration, the Institutional Trustee shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by a Trustee on behalf of the Trust and in accordance with such Trustee's powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively
on the power and authority of the Trustees as set forth in this Declaration. The Administrators shall have only those ministerial duties set forth herein with respect to accomplishing the purposes of the Trust and are not intended to be trustees or fiduciaries with respect to the Trust or the Holders. The Institutional Trustee shall have the right, but shall not be obligated except as provided in Section 3.6(a)(iii), to perform those duties assigned to the Administrators.
Section 3.5. TITLE TO PROPERTY OF THE TRUST. Except as provided in Section 3.8 with respect to the Debt Securities and the Property Account or as otherwise provided in this Declaration, legal title to all assets of the Trust shall be vested in the Trust. The Holders shall not have legal title to any part of the assets of the Trust, but shall have an undivided beneficial interest in the assets of the Trust.
Section 3.6. POWERS AND DUTIES OF THE TRUSTEES AND THE ADMINISTRATORS.
(a) The Trustees and the Administrators shall conduct the affairs of the Trust in accordance with the terms of this Declaration. Subject to the limitations set forth in paragraph (b) of this Section, and in accordance with the following provisions (i) and (ii), the Administrators and, at the direction of the Administrators, the Trustees, shall have the authority to enter into all transactions and agreements determined by the Administrators to be appropriate in exercising the authority, express or implied, otherwise granted to the Trustees or the Administrators, as the case may be, under this Declaration, and to perform all acts in furtherance thereof, including without limitation, the following:
(i) Each Administrator shall have the power, duty and authority, and is hereby authorized, to act on behalf of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities and the consummation of the Exchange Offer;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust,
such agreements as may be necessary or desirable in
connection with the purposes and function of the
Trust, including agreements with the Paying Agent,
the Registration Rights Agreement, the Liquidated
Damages Agreement, a subscription agreement for Debt
Securities between the Trust and the Sponsor, a
subscription agreement for Common Securities between
the Trust and the Sponsor, an offering memorandum
(the "Offering Memorandum") in preliminary and final
form prepared by the Sponsor, in relation to the
offering and sale of the Series A Capital Securities
to QIBs in reliance on Rule 144A and to institutional
"accredited investors" (as defined in Rule 50l(a)(1),
(2), (3), (7) or (8) under the Securities Act);
(C) if required, execute and file with the Commission a Registration Statement on Form 8-A, including any amendments thereto, prepared by the Sponsor, relating to the registration of the Capital
Securities under Section 12(b) or 12(g) of the Exchange Act, as the case may be;
(D) letters, documents, or instruments with DTC and other Clearing Agencies relating to the Capital Securities;
(E) ensuring compliance with the Securities Act and applicable securities or blue sky laws of states and other jurisdictions;
(F) if and at such time determined solely by the Sponsor at the request of the Holders, assisting in the designation of the Capital Securities for trading in the Private Offering, Resales and Trading through the Automatic Linkages ("PORTAL") system if available;
(G) the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debt Securities to the Holders in accordance with this Declaration, including notice of any notice received from the Debt Security Issuer of its election to defer payments of interest on the Debt Securities by extending the interest payment period under the Indenture;
(H) the appointment of a Paying Agent, Transfer Agent and Registrar in accordance with this Declaration;
(I) execution and delivery of the Trust Securities in accordance with this Declaration;
(J) execution and delivery of closing certificates pursuant to the Purchase Agreement and the application for a taxpayer identification number;
(K) unless otherwise determined by the Holders of a Majority in Liquidation Amount of the Trust Securities or as otherwise required by the Statutory Trust Act, to execute on behalf of the Trust (either acting alone or together with any or all of the Administrators) any documents that the Administrators have the power to execute pursuant to this Declaration;
(L) the taking of any action as the Sponsor or an Administrator may from time to time determine is necessary, advisable or incidental to the foregoing to give effect to the terms of this Declaration for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder);
(M) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes of ss. 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Capital Securities and Holders of Common Securities as to such actions and applicable record dates;
(N) to cause the Trust to comply with the Trust's obligations under the Trust Indenture Act;
(O) to give the certificate required by ss. 314(a)(4) of the Trust Indenture Act to the Institutional Trustee, which certificate may be executed by any Administrator;
(P) to duly prepare and file on behalf of the Trust all applicable tax returns and tax information reports that are required to be filed with respect to the Trust;
(Q) to negotiate the terms of, and the execution and delivery of, the Purchase Agreement providing for the sale of the Capital Securities;
(R) to employ or otherwise engage employees, agents (who may be designated as officers with titles), managers, contractors, advisors, attorneys and consultants and pay reasonable compensation for such services;
(S) to incur expenses that are necessary, advisable or incidental to carry out any of the purposes of the Trust;
(T) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory trust under the laws of each jurisdiction (other than the State of Delaware) in which such existence is necessary to protect the limited liability of the Holders of the Capital Securities or to enable the Trust to effect the purposes for which the Trust was created.
(ii) As among the Trustees and the Administrators, the Institutional Trustee shall have the power, duty and authority, and is hereby authorized, to act on behalf of the Trust with respect to the following matters:
(A) the establishment of the Property Account;
(B) the receipt of the Debt Securities;
(C) the collection of interest, principal and any other payments made in respect of the Debt Securities in the Property Account;
(D) the distribution through the Paying Agent of amounts owed to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of the Debt Securities;
(F) the sending of notices of default and other information regarding the Trust Securities and the Debt Securities to the Holders in accordance with this Declaration;
(G) the distribution of the Trust Property in accordance with the terms of this Declaration;
(H) to the extent provided in this Declaration, the winding up of the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after any Event of Default (of which the
Institutional Trustee has knowledge (as provided in
Section 3.10(m) hereof)) (PROVIDED, THAT such Event
of Default is not by or with respect to the
Institutional Trustee), the taking of any action that
the Institutional Trustee may from time to time
determine is necessary, advisable or incidental for
the foregoing to give effect to the terms of this
Declaration and protect and conserve the Trust
Property for the benefit of the Holders (without
consideration of the effect of any such action on any
particular Holder);
(J) to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust's valid existence, rights, franchises and privileges as a statutory trust under the laws of the State of Delaware to protect the limited liability of the Holders of the Capital Securities or to enable the Trust to effect the purposes for which the Trust was created; and
(K) to undertake any actions set forth in ss. 317(a) of the Trust Indenture Act.
(iii) The Institutional Trustee shall have the power
and authority, and is hereby authorized, to act on behalf of
the Trust with respect to any of the duties, liabilities,
powers or the authority of the Administrators set forth in
Section 3.6(a)(i)(E) and (F) herein but shall not have a duty
to do any such act unless specifically requested to do so in
writing by the Sponsor, and shall then be fully protected in
acting pursuant to such written request; and in the event of a
conflict between the action of the Administrators and the
action of the Institutional Trustee, the action of the
Institutional Trustee shall prevail.
(b) So long as this Declaration remains in effect, the Trust (or the Trustees or Administrators acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Trustees nor the Administrators may cause the Trust to (i) acquire any investments or engage in any activities not authorized by this Declaration, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein,
(iii) take any action that would cause (or in the case of the Institutional
Trustee, to the actual knowledge of a Responsible Officer would cause) the Trust
to fail to be classified as a grantor trust for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money or issue any other debt
or (v) take or consent to any action that would result in the placement of a
lien on any of the Trust Property. The Institutional Trustee shall, at the sole
cost and expense of the Trust subject to reimbursement under Section 10.6(a),
defend all claims and demands of all Persons at any time claiming any lien on
any of the Trust Property adverse to the interest of the Trust or the Holders in
their capacity as Holders.
(c) In connection with the issuance and sale of the Capital Securities, the Sponsor shall have the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Sponsor in furtherance of the following prior to the date of this Declaration are hereby ratified and confirmed in all respects):
(i) the taking of any action necessary to obtain an exemption from the Securities Act;
(ii) the determination of the jurisdictions in which to take appropriate action to qualify or register for sale all or part of the Capital Securities and the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and the advisement of and direction to the Trustees of actions they must take on behalf of the Trust, and the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such jurisdictions in connection with the sale of the Capital Securities; and
(iii) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators, the Institutional Trustee and the Holders of a Majority in Liquidation Amount of the Common Securities are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that (i) the Trust will not be deemed to be an Investment Company required to be registered under the Investment Company Act (in the case of the Institutional Trustee, to the actual knowledge of a Responsible Officer), and (ii) the Trust will not fail to be classified as a grantor trust for United States federal income tax purposes (in the case of the Institutional Trustee, to the actual knowledge of a Responsible Officer) and (iii) the Trust will not take any action inconsistent with the treatment of the Debt Securities as indebtedness of the Debt Security Issuer for United States federal income tax purposes (in the case of the Institutional Trustee, to the actual knowledge of a Responsible Officer). In this connection, the Institutional Trustee, the Administrators and the Holders of a Majority in Liquidation Amount of the Common Securities are authorized to take any action, not inconsistent with applicable laws or this Declaration, as amended from time to time, that each of the Institutional Trustee, the Administrators and such
Holders determine in their discretion to be necessary or desirable for such purposes, even if such action adversely affects the interests of the Holders of the Capital Securities.
(e) All expenses incurred by the Administrators or the Trustees pursuant to this Section 3.6 shall be reimbursed by the Sponsor, and the Trustees shall have no obligations with respect to such expenses.
(f) The assets of the Trust shall consist of the Trust Property.
(g) Legal title to all Trust Property shall be vested at all times in the Institutional Trustee (in its capacity as such) and shall be held and administered by the Institutional Trustee for the benefit of the Trust in accordance with this Declaration.
(h) If the Institutional Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Declaration and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Institutional Trustee or to such Holder, then and in every such case the Sponsor, the Institutional Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Institutional Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 3.7. PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
The Trust shall not, and the Institutional Trustee and the Administrators shall not, and the Administrators shall cause the Trust not to, engage in any activity other than as required or authorized by this Declaration. In particular, the Trust shall not, and the Institutional Trustee and the Administrators shall not cause the Trust to:
(a) invest any proceeds received by the Trust from holding the Debt Securities, but shall distribute all such proceeds to Holders of the Trust Securities pursuant to the terms of this Declaration and of the Trust Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust Property for other than a Trust purpose;
(d) make any loans or incur any indebtedness other than loans represented by the Debt Securities;
(e) possess any power or otherwise act in such a way as to vary the Trust Property or the terms of the Trust Securities;
(f) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Trust Securities; or
(g) other than as provided in this Declaration (including Annex I), (i) direct the time, method and place of exercising any trust or power conferred upon the Indenture Trustee with respect to the Debt Securities, (ii) waive any past default that is waivable under the
Indenture, (iii) exercise any right to rescind or annul any declaration that the principal of all the Debt Securities shall be due and payable, or (iv) consent to any amendment, modification or termination of the Indenture or the Debt Securities where such consent shall be required, in each case unless the Trust shall have received an Opinion of Counsel experienced in such matters to the effect that the Trust will continue to be classified as a grantor trust for United States federal income tax purposes.
Section 3.8. POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE.
(a) The legal title to the Debt Securities shall be owned by and held of record in the name of the Institutional Trustee in trust for the benefit of the Trust. The right, title and interest of the Institutional Trustee to the Debt Securities shall vest automatically in each Person who may hereafter be appointed as Institutional Trustee in accordance with Section 5.5. Such vesting and cessation of title shall be effective whether or not conveyancing documents with regard to the Debt Securities have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and interest in the Debt Securities to the Administrators or to the Delaware Trustee.
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust account (the "Property Account") in the United States (as defined in Treasury Regulationsss.301.7701-7), in the name of and under the exclusive control of the Institutional Trustee, and maintained in the Institutional Trustee's trust department, on behalf of the Holders of the Trust Securities and, upon the receipt of payments of funds made in respect of the Debt Securities held by the Institutional Trustee, deposit such funds into the Property Account and make payments to the Holders of the Capital Securities and Holders of the Common Securities from the Property Account in accordance with Section 6.1. Funds in the Property Account shall be held uninvested until disbursed in accordance with this Declaration;
(ii) engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Trust Securities to the extent the Debt Securities are redeemed or mature; and
(iii) upon written notice of distribution issued by the Administrators in accordance with the terms of the Trust Securities, engage in such ministerial activities as shall be necessary or appropriate to effect the distribution of the Debt Securities to Holders of Trust Securities upon the occurrence of the circumstances specified therefor under the terms of the Trust Securities.
(d) The Institutional Trustee shall take all actions and perform such duties as may be specifically required of the Institutional Trustee pursuant to the terms of the Trust Securities.
(e) The Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate, resort to legal action with respect to, or otherwise adjust claims or demands of or against, the Trust (a "Legal Action") which arise out of or in connection with an Event of Default of which a Responsible Officer of the Institutional Trustee has actual knowledge or the Institutional Trustee's duties and obligations under this Declaration or the Trust Indenture Act; PROVIDED, HOWEVER, that if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Debt Security Issuer to pay interest or premium, if any, or Liquidated Damages, if any, on or principal of the Debt Securities on the date such interest, premium or Liquidated Damages, if any, or principal is otherwise payable (or in the case of redemption, on the date of redemption), then a Holder of the Capital Securities may directly institute a proceeding for enforcement of payment to such Holder of the principal of and premium, if any, and Liquidated Damages, if any, and interest on the Debt Securities having a principal amount equal to the aggregate Liquidation Amount of the Capital Securities of such Holder (a "Direct Action") on or after the respective due date specified in the Debt Securities (or, in the case of redemption, on or after the date of redemption). In connection with such Direct Action, the rights of the Holders of the Common Securities will be subrogated to the rights of such Holder of the Capital Securities to the extent of any payment made by the Debt Security Issuer to such Holder of the Capital Securities in such Direct Action; PROVIDED, HOWEVER, that a Holder of the Common Securities may exercise such right of subrogation only if no Event of Default with respect to the Capital Securities has occurred and is continuing.
(f) The Institutional Trustee shall continue to serve as a Trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders of the Trust Securities pursuant to the terms of the Trust Securities and this Declaration (including Annex I); or
(ii) a Successor Institutional Trustee has been
appointed and has accepted that appointment in accordance with
Section 5.5.
(g) The Institutional Trustee shall have the legal power to exercise all of the rights, powers and privileges of a holder of the Debt Securities under the Indenture and, if an Event of Default actually known to a Responsible Officer occurs and is continuing, the Institutional Trustee may, for the benefit of Holders of the Trust Securities, enforce its rights as holder of the Debt Securities subject to the rights of the Holders pursuant to this Declaration (including Annex I) and the terms of the Trust Securities.
(h) The Institutional Trustee must exercise the powers set forth in this Section 3.8 in a manner that is consistent with the purposes and functions of the Trust set out in Section 3.3, and the Institutional Trustee shall not take any action that is inconsistent with the purposes and functions of the Trust set out in Section 3.3.
(i) For such time as the Institutional Trustee is the Paying Agent, the Institutional Trustee may authorize one or more Persons to act as additional Paying Agents and to pay Distributions, redemption payments or liquidation payments on behalf of the Trust with respect to all Securities and any such additional Paying Agent shall comply with ss. 317(b) of the Trust Indenture Act. Any such additional Paying Agent may be removed by the Institutional
Trustee at any time the Institutional Trustee remains as Paying Agent and a successor Paying Agent or additional Paying Agents may be (but are not required to be) appointed at any time by the Institutional Trustee while the Institutional Trustee is acting as Paying Agent.
(j) The Institutional Trustee shall be authorized to undertake any actions set forth in ss. 317(a) of the Trust Indenture Act.
Section 3.9. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEES AND THE ADMINISTRATORS.
(a) The Institutional Trustee, before the occurrence of any
Event of Default (of which the Institutional Trustee has knowledge (as provided
in Section 3.10(m) hereof)) and after the curing of all Events of Default that
may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Declaration and no implied covenants shall be
read into this Declaration against the Institutional Trustee. In case an Event
of Default (of which the Institutional Trustee has knowledge (as provided in
Section 3.10(m) hereof)), has occurred (that has not been cured or waived
pursuant to Section 7.7), the Institutional Trustee shall exercise such of the
rights and powers vested in it by this Declaration, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) The duties and responsibilities of the Trustees and the Administrators shall be as provided by this Declaration and, in the case of the Institutional Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Declaration shall require any Trustee or Administrator to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Declaration relating to the conduct or affecting the liability of or affording protection to the Trustees or the Administrators shall be subject to the provisions of this Article. Nothing in this Declaration shall be construed to release a Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or bad faith. Nothing in this Declaration shall be construed to release an Administrator from liability for its own gross negligent action, its own gross negligent failure to act, or its own willful misconduct or bad faith. To the extent that, at law or in equity, a Trustee or an Administrator has duties and liabilities relating to the Trust or to the Holders, such Trustee or Administrator shall not be liable to the Trust or to any Holder for such Trustee's or Administrator's good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of the Administrators or the Trustees otherwise existing at law or in equity, are agreed by the Sponsor and the Holders to replace such other duties and liabilities of the Administrators or the Trustees.
(c) All payments made by the Institutional Trustee or a Paying Agent in respect of the Trust Securities shall be made only from the revenue and proceeds from the Trust Property and only to the extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the Institutional Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each Holder, by its acceptance of a Trust Security, agrees that it will
look solely to the revenue and proceeds from the Trust Property to the extent legally available for distribution to it as herein provided and that the Trustees and the Administrators are not personally liable to it for any amount distributable in respect of any Trust Security or for any other liability in respect of any Trust Security. This Section 3.9(c) does not limit the liability of the Trustees expressly set forth elsewhere in this Declaration or, in the case of the Institutional Trustee, in the Trust Indenture Act.
(d) No provision of this Declaration shall be construed to relieve the Institutional Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or bad faith with respect to matters that are within the authority of the Institutional Trustee under this Declaration, except that:
(i) the Institutional Trustee shall not be liable for any error or judgment made in good faith by an Authorized Officer of the Institutional Trustee, unless it shall be proved that the Institutional Trustee was negligent in ascertaining the pertinent facts;
(ii) the Institutional Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a Majority in Liquidation Amount of the Capital Securities or the Common Securities, as applicable, relating to the time, method and place of conducting any proceeding for any remedy available to the Institutional Trustee, or exercising any trust or power conferred upon the Institutional Trustee under this Declaration;
(iii) the Institutional Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the Debt Securities and the Property Account shall be to deal with such property in a similar manner as the Institutional Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Institutional Trustee under this Declaration and the Trust Indenture Act;
(iv) the Institutional Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree in writing with the Sponsor; and money held by the Institutional Trustee need not be segregated from other funds held by it except in relation to the Property Account maintained by the Institutional Trustee pursuant to Section 3.8(c)(i) and except to the extent otherwise required by law; and
(v) the Institutional Trustee shall not be responsible for monitoring the compliance by the Administrators or the Sponsor with their respective duties under this Declaration, nor shall the Institutional Trustee be liable for any default or misconduct of the Administrators or the Sponsor.
Section 3.10. CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE. Subject to the provisions of Section 2.9:
(a) the Institutional Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration, the Institutional Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Declaration, the Institutional Trustee finds the same ambiguous or inconsistent with any other provisions contained herein, or (iii) the Institutional Trustee is unsure of the application of any provision of this Declaration, then, except as to any matter as to which the Holders of Capital Securities are entitled to vote under the terms of this Declaration, the Institutional Trustee may deliver a notice to the Sponsor requesting the Sponsor's opinion as to the course of action to be taken and the Institutional Trustee shall take such action, or refrain from taking such action, as the Institutional Trustee in its sole discretion shall deem advisable and in the best interests of the Holders, in which event the Institutional Trustee shall have no liability except for its own negligence, willful misconduct or bad faith;
(c) any direction or act of the Sponsor or the Administrators contemplated by this Declaration shall be sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration, the Institutional Trustee shall deem it desirable that a matter be proved or established before undertaking, suffering or omitting any action hereunder, the Institutional Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor or the Administrators;
(e) the Institutional Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any rerecording, refiling or reregistration thereof;
(f) the Institutional Trustee may consult with counsel of its selection (which counsel may be counsel to the Sponsor or any of its Affiliates) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Institutional Trustee shall have the right at any time to seek instructions concerning the administration of this Declaration from any court of competent jurisdiction;
(g) the Institutional Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Declaration at the request or direction of any of the Holders pursuant to this Declaration, unless such Holders shall have offered to the Institutional Trustee
security or indemnity reasonably satisfactory to it against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or
direction; PROVIDED, THAT nothing contained in this Section 3.10(g) shall be
taken to relieve the Institutional Trustee, upon the occurrence of an Event of
Default (of which the Institutional Trustee has knowledge (as provided in
Section 3.10(m) hereof)) that has not been cured or waived, of its obligation to
exercise the rights and powers vested in it by this Declaration;
(h) the Institutional Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Institutional Trustee may make such further inquiry or investigation into such facts or matters as it may see fit;
(i) the Institutional Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys and the Institutional Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent or attorney appointed with due care by it hereunder;
(j) whenever in the administration of this Declaration the Institutional Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Institutional Trustee (i) may request instructions from the Holders of the Common Securities and the Capital Securities, which instructions may be given only by the Holders of the same proportion in Liquidation Amount of the Common Securities and the Capital Securities as would be entitled to direct the Institutional Trustee under the terms of the Common Securities and the Capital Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be fully protected in acting in accordance with such instructions;
(k) except as otherwise expressly provided in this Declaration, the Institutional Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Declaration;
(l) when the Institutional Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally;
(m) the Institutional Trustee shall not be charged with knowledge of an Event of Default unless a Responsible Officer of the Institutional Trustee has actual knowledge of such event or the Institutional Trustee receives written notice of such event from any Holder, except that the Institutional Trustee shall be deemed to have knowledge of any Event of Default pursuant to Sections 5.01(a) or 5.01(b) of the Indenture (other than an Event of Default resulting from the default in the payment of Additional Amounts or Liquidated Damages if the Institutional Trustee does not have actual knowledge or written notice that such payment is due and payable);
(n) any action taken by the Institutional Trustee or its agents hereunder shall bind the Trust and the Holders of the Trust Securities, and the signature of the Institutional Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Institutional Trustee to so act or as to its compliance with any of the terms and provisions of this Declaration, both of which shall be conclusively evidenced by the Institutional Trustee's or its agent's taking such action; and
(o) no provision of this Declaration shall be deemed to impose any duty or obligation on the Institutional Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Institutional Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation, and no permissive power or authority available to the Institutional Trustee shall be construed to be a duty.
Section 3.11. DELAWARE TRUSTEE. Notwithstanding any other provision of this Declaration other than Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers, and the Delaware Trustee shall not have any of the duties and responsibilities of any of the Trustees or the Administrators specified in this Declaration (except as may be required under the Statutory Trust Act). Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of ss. 3807 of the Statutory Trust Act.
Section 3.12. EXECUTION OF DOCUMENTS. Unless otherwise determined in writing by the Institutional Trustee, and except as otherwise required by the Statutory Trust Act, the Institutional Trustee, or any one or more of the Administrators, as the case may be, is authorized to execute and deliver on behalf of the Trust any documents, agreements, instruments or certificates that the Trustees or the Administrators, as the case may be, have the power and authority to execute pursuant to Section 3.6.
Section 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF TRUST SECURITIES. The recitals contained in this Declaration and the Trust Securities shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the Trust Property or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Declaration, the Debt Securities or the Trust Securities.
Section 3.14. DURATION OF TRUST. The Trust, unless dissolved pursuant to the provisions of Article VIII hereof, shall have existence for five years after the Maturity Date.
Section 3.15. MERGERS. (a) The Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation or other Person, except as described in this Section 3.15 and except with respect to the distribution of Debt Securities to Holders of Trust Securities pursuant to Section 8.1(a)(iv) of this Declaration or Section 4 of Annex I.
(b) The Trust may, with the consent of the Administrators (which consent will not be unreasonably withheld) and without the consent of the Institutional Trustee, the Delaware Trustee or the Holders of the Capital Securities, consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to a trust organized as such under the laws of any state; PROVIDED, THAT:
(i) if the Trust is not the survivor, such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under the Trust Securities; or
(B) substitutes for the Trust Securities other securities having substantially the same terms as the Trust Securities (the "Successor Securities") so that the Successor Securities rank the same as the Trust Securities rank with respect to Distributions and payments upon Liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints, as the holder of the Debt Securities, a trustee of the Successor Entity that possesses the same powers and duties as the Institutional Trustee;
(iii) the Capital Securities or any Successor Securities are listed or quoted, or any Successor Securities will be listed or quoted upon notification of issuance, on any national securities exchange or with another organization on which the Capital Securities are then listed or quoted, if any;
(iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the rating on the Capital Securities or any Successor Securities to be downgraded or withdrawn by any nationally recognized statistical rating organization, if the Capital Securities are then rated;
(v) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Trust Securities or any Successor Securities in any material respect (other than with respect to any dilution of such Holders' interests in the Successor Entity);
(vi) such Successor Entity, if any, has a purpose substantially identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Trust has received an Opinion of Counsel experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities or any Successor Securities in any material respect (other than with respect to any dilution of such Holders' interests in the Successor Entity);
(B) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor the Successor Entity will be required to register as an Investment Company under the Investment Company Act; and
(C) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Trust or the Successor Entity will continue to be classified as a grantor trust for United States federal income tax purposes;
(viii) the Sponsor guarantees the obligations of the Successor Entity under the Successor Securities to the same extent provided by the Indenture, the Guarantee, the Debt Securities and this Declaration; and
(ix) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Institutional Trustee shall have received an Officers' Certificate of the Administrators and an Opinion of Counsel, each to the effect that all conditions precedent of this paragraph (b) to such transaction have been satisfied.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the consent of Holders of 100% in Liquidation Amount of the Trust Securities, consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to, any other Person or permit any other Person to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the Trust or Successor Entity to be classified as other than a grantor trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
Section 4.1. SPONSOR'S PURCHASE OF COMMON SECURITIES. On the Closing Date, the Sponsor will purchase all of the Common Securities issued by the Trust, in an amount at least equal to 3% of the capital of the Trust, at the same time as the Capital Securities are sold.
Section 4.2. RESPONSIBILITIES OF THE SPONSOR. In connection with the issue and sale of the Capital Securities, the Sponsor shall have the exclusive right and responsibility and sole decision to engage in, or direct the Administrators to engage in, the following activities:
(a) to prepare the Offering Memorandum, in both preliminary and final form and to cause the Trust to file with the Commission any Registration Statement, including any amendments thereto, as contemplated by the Registration Rights Agreement;
(b) to determine the jurisdictions in which to take appropriate action to qualify or register for sale all or part of the Capital Securities and to do any and all such acts, other than actions which must be taken by the Trust, and advise the Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Trust, as the Sponsor deems necessary, advisable or incidental thereto in order to comply with the applicable laws of any such jurisdictions;
(c) to prepare for filing and request the Administrators to cause the filing by the Trust, as may be appropriate, of an application to the PORTAL system, for listing or quotation upon notice of issuance of any Capital Securities, as requested by the Holders of not less than a Majority in Liquidation Amount of the Capital Securities;
(d) to cause the Trust to file with the Commission a Registration Statement on Form 8-A, including any amendments thereto, relating to the registration of the Capital Securities under Section 12(b) or 12(g) of the Exchange Act, as the case may be, including any amendments thereto; and
(e) to negotiate the terms of and/or execute and deliver on behalf of the Trust, the Purchase Agreement, the Registration Rights Agreement and the Liquidated Damages Agreement and any other agreements related to the sale of the Capital Securities.
ARTICLE V
TRUSTEES AND ADMINISTRATORS
Section 5.1. NUMBER OF TRUSTEES. The number of Trustees initially shall be two, and:
(a) at any time before the issuance of any Trust Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Trust Securities, the number of
Trustees may be increased or decreased by vote of the Holder of a Majority in
Liquidation Amount of the Common Securities voting as a class at a meeting of
the Holder of the Common Securities; PROVIDED, HOWEVER, that there shall be a
Delaware Trustee if required by Section 5.2; and there shall always be one
Trustee who shall be the Institutional Trustee, and such Trustee may also serve
as Delaware Trustee if it meets the applicable requirements, in which case
Section 3.11 shall have no application to such entity in its capacity as
Institutional Trustee.
Section 5.2. DELAWARE TRUSTEE. If required by the Statutory Trust Act, one Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware and a U.S. Person at least 21 years of age; or
(b) if not a natural person, an entity which is organized under the laws of the United States or any state thereof or the District of Columbia, has its principal place of business
in the State of Delaware, and otherwise meets the requirements of applicable law, including ss.3807 of the Statutory Trust Act.
The initial Delaware Trustee shall be Wilmington Trust Company.
Section 5.3. INSTITUTIONAL TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee that shall act as Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) not offer or provide credit or credit enhancement to the Trust; and
(iii) be a banking corporation or national association organized and doing business under the laws of the United States of America or any state thereof or of the District of Columbia or other Person permitted by the Commission to act as indenture trustee under the Trust Indenture Act and authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state or District of Columbia authority. If such corporation, national association or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then for the purposes of this Section 5.3(a)(iii), the combined capital and surplus of such corporation, national association or other Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
(b) If at any time the Institutional Trustee shall cease to be eligible to so act under Section 5.3(a), the Institutional Trustee shall immediately resign in the manner and with the effect set forth in Section 5.5.
(c) If the Institutional Trustee has or shall acquire any "conflicting interest" within the meaning of ss. 310(b) of the Trust Indenture Act, the Institutional Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to this Declaration.
(d) The Guarantee shall be deemed to be specifically described in this Declaration for purposes of clause (i) of the first proviso contained in ss. 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be Wilmington Trust Company.
Section 5.4. ADMINISTRATORS. Each Administrator shall be a U.S. Person. There shall at all times be at least one Administrator. Except where a requirement for action by a specific number of Administrators is expressly set forth in this Declaration and except with respect to any action the taking of which is the subject of a meeting of the Administrators, any action required or permitted to be taken by the Administrators may be taken by, and any power
of the Administrators may be exercised by, or with the consent of, any one such Administrator acting alone.
Section 5.5. APPOINTMENT, REMOVAL AND RESIGNATION OF THE TRUSTEES AND THE ADMINISTRATORS.
(a) No resignation or removal of any Trustee (the "Relevant Trustee") and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section.
(b) Subject to Section 5.5(a), a Relevant Trustee may resign at any time by giving written notice thereof to the Holders of the Trust Securities and by appointing a successor Relevant Trustee. Upon the resignation of the Institutional Trustee, the Institutional Trustee shall appoint a successor by requesting from at least three Persons meeting the eligibility requirements their expenses and charges to serve as the successor Institutional Trustee on a form provided by the Administrators, and selecting the Person who agrees to the lowest expense and charges (the "Successor Institutional Trustee"). If the instrument of acceptance by the successor Relevant Trustee required by this Section shall not have been delivered to the Relevant Trustee within 60 days after the giving of such notice of resignation or delivery of the instrument of removal, the Relevant Trustee may petition, at the expense of the Trust, any federal, state or District of Columbia court of competent jurisdiction for the appointment of a successor Relevant Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Relevant Trustee. The Institutional Trustee shall have no liability for the selection of such successor pursuant to this Section.
(c) Unless an Event of Default shall have occurred and be continuing, any Trustee may be removed at any time by an act of the Holders of a Majority in Liquidation Amount of the Common Securities. If any Trustee shall be so removed, the Holders of the Common Securities, by act of the Holders of a Majority in Liquidation Amount of the Common Securities delivered to the Relevant Trustee, shall promptly appoint a successor Relevant Trustee, and such successor Relevant Trustee shall comply with the applicable requirements of this Section. If an Event of Default shall have occurred and be continuing, the Institutional Trustee or the Delaware Trustee, or both of them, may be removed by the act of the Holders of a Majority in Liquidation Amount of the Capital Securities, delivered to the Relevant Trustee (in its individual capacity and on behalf of the Trust). If any Trustee shall be so removed, the Holders of Capital Securities, by act of the Holders of a Majority in Liquidation Amount of the Capital Securities then outstanding delivered to the Relevant Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and such successor Relevant Trustee shall comply with the applicable requirements of this Section. If no successor Relevant Trustee shall have been so appointed by the Holders of a Majority in Liquidation Amount of the Capital Securities and accepted appointment in the manner required by this Section within 30 days after delivery of an instrument of removal, the Relevant Trustee or any Holder who has been a Holder of the Trust Securities for at least six months may, on behalf of himself and all others similarly situated, petition any federal, state or District of Columbia court of competent jurisdiction for the appointment of a successor Relevant Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a successor Relevant Trustee or Trustees.
(d) The Institutional Trustee shall give notice of each resignation and each removal of a Trustee and each appointment of a successor Trustee to all Holders and to the Sponsor. Each notice shall include the name of the successor Relevant Trustee and the address of its Corporate Trust Office if it is the Institutional Trustee.
(e) Notwithstanding the foregoing or any other provision of this Declaration, in the event a Delaware Trustee who is a natural person dies or is adjudged by a court to have become incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by the Institutional Trustee following the procedures in this Section (with the successor being a Person who satisfies the eligibility requirement for a Delaware Trustee set forth in this Declaration) (the "Successor Delaware Trustee").
(f) In case of the appointment hereunder of a successor Relevant Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with respect to the Trust Securities shall execute and deliver an amendment hereto wherein each successor Relevant Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee all the rights, powers, trusts and duties of the retiring Relevant Trustee with respect to the Trust Securities and the Trust and (b) shall add to or change any of the provisions of this Declaration as shall be necessary to provide for or facilitate the administration of the Trust by more than one Relevant Trustee, it being understood that nothing herein or in such amendment shall constitute such Relevant Trustees co-trustees and upon the execution and delivery of such amendment the resignation or removal of the retiring Relevant Trustee shall become effective to the extent provided therein and each such successor Relevant Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Relevant Trustee; but, on request of the Trust or any successor Relevant Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver to such successor Relevant Trustee all Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder with respect to the Trust Securities and the Trust subject to the payment of all unpaid fees, expenses and indemnities of such retiring Relevant Trustee.
(g) No Institutional Trustee or Delaware Trustee shall be liable for the acts or omissions to act of any Successor Institutional Trustee or Successor Delaware Trustee, as the case may be.
(h) The Holders of the Capital Securities will have no right to vote to appoint, remove or replace the Administrators, which voting rights are vested exclusively in the Holders of the Common Securities.
(i) Any Successor Delaware Trustee shall file an amendment to the Certificate of Trust with the Secretary of State of the State of Delaware identifying the name and principal place of business of such Delaware Trustee in the State of Delaware.
Section 5.6. VACANCIES AMONG TRUSTEES. If a Trustee ceases to
hold office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Trustees or, if there are more than two, a majority of the
Trustees shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 5.5.
Section 5.7. EFFECT OF VACANCIES. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of an Trustees shall not operate to dissolve, terminate or annul the Trust or terminate this Declaration. Whenever a vacancy in the number of Trustees shall occur, until such vacancy is filled by the appointment of the Trustees in accordance with Section 5.5, the Institutional Trustee shall have all the powers granted to the Trustees and shall discharge all the duties imposed upon the Trustees by this Declaration.
Section 5.8. MEETINGS OF THE TRUSTEES AND THE ADMINISTRATORS. Meetings of the Trustees or the Administrators shall be held from time to time upon the call of any Trustee or Administrator, as applicable. Regular meetings of the Trustees and the Administrators, respectively, may be in person in the United States or by telephone, at a place (if applicable) and time fixed by resolution of the Trustees or the Administrators, as applicable. Notice of any in-person meetings of the Trustees or the Administrators shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 48 hours before such meeting. Notice of any telephonic meetings of the Trustees or the Administrators or any committee thereof shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of a Trustee or an Administrator, as the case may be, at a meeting shall constitute a waiver of notice of such meeting except where a Trustee or an Administrator, as the case may be, attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the meeting has not been lawfully called or convened. Unless provided otherwise in this Declaration, any action of the Trustees or the Administrators, as the case may be, may be taken at a meeting by vote of a majority of the Trustees or the Administrators present (whether in person or by telephone) and eligible to vote with respect to such matter; PROVIDED, THAT, in the case of the Administrators, a Quorum is present, or without a meeting by the unanimous written consent of the Trustees or the Administrators, as the case may be. Meetings of the Trustees and the Administrators together shall be held from time to time upon the call of any Trustee or Administrator.
Section 5.9. DELEGATION OF POWER. (a) Any Trustee or any Administrator, as the case may be, may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 that is a U.S. Person his or her power for the purpose of executing any documents, instruments or other writings contemplated in Section 3.6 including any Registration Statement or amendment thereto filed with the Commission, or including any other governmental filing.
(b) The Trustees shall have power to delegate from time to time to such of their number or to any officer of the Trust that is a U.S. Person, the doing of such things and the execution of such instruments or other writings either in the name of the Trust or the names of the Trustees or otherwise as the Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of this Declaration.
Section 5.10. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any Person into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Institutional Trustee
or the Delaware Trustee, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
provided such Person shall be otherwise qualified and eligible under this
Article and, PROVIDED, further, that such Person shall file an amendment to the
Certificate of Trust with the Secretary of State of the State of Delaware as
contemplated in Section 5.5(i).
ARTICLE VI
DISTRIBUTIONS
Section 6.1. DISTRIBUTIONS. Holders shall receive Distributions in accordance with the applicable terms of the relevant Holder's Trust Securities. Distributions shall be made on the Capital Securities and the Common Securities in accordance with the preferences set forth in their respective terms. If and to the extent that the Debt Security Issuer makes a payment of interest (including any Additional Amounts or Deferred Interest) or premium, or Liquidated Damages, if any, on and/or principal of the Debt Securities held by the Institutional Trustee (the amount of any such payment being a "Payment Amount"), the Institutional Trustee shall and is directed, to the extent funds are available in the Property Account for that purpose, to make a distribution (a "Distribution") of the Payment Amount to Holders. For the avoidance of doubt, funds in the Property Account shall not be distributed to Holders to the extent of any taxes payable by the Trust, in the case of withholding taxes, as determined by the Institutional Trustee or any Paying Agent and, in the case of taxes other than withholding taxes, as determined by the Administrators in a written notice to the Institutional Trustee.
ARTICLE VII
ISSUANCE OF TRUST SECURITIES
Section 7.1. GENERAL PROVISIONS REGARDING TRUST SECURITIES.
(a) On the Closing Date, the Administrators shall on behalf of the Trust issue one series of securities, evidenced by a certificate substantially in the form of Exhibit A-1-A, representing undivided preferred beneficial interests in the assets of the Trust and having such terms as are set forth in Annex I (the "Series A Capital Securities"), and one series of common securities, evidenced by a certificate substantially in the form of Exhibit A-2, representing undivided common beneficial interests in the assets of the Trust and having such terms as are set forth in Annex I (the "Common Securities"). In the Exchange Offer, the Administrators shall, on behalf of the Trust, issue securities representing undivided preferred beneficial interests in the assets of the Trust having such terms as set forth in Annex I (the "Series B Capital Securities") in exchange for the Series A Capital Securities tendered and accepted for exchange, which Series B Capital Securities shall not bear the Restricted Securities Legend
unless the Holder of such Series A Capital Securities is (A) a broker-dealer who purchased such Series A Capital Securities directly from the Trust for resale pursuant to Rule 144A or any other available exemption under the Securities Act, (B) a Person participating in the distribution of the Series A Capital Securities or (C) a Person who is an Affiliate of the Sponsor or the Trust. The Trust shall issue no securities or other interests in the assets of the Trust other than the Capital Securities and the Common Securities. The Capital Securities rank PARI PASSU with, and payment thereon shall be made Pro Rata with the Common Securities except that, where an Event of Default has occurred and is continuing, the rights of Holders of the Common Securities to payment in respect of Distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of the Capital Securities.
(b) The Certificates shall be signed on behalf of the Trust by one or more Administrators. Such signature shall be the facsimile or manual signature of any Administrator. In case any Administrator of the Trust who shall have signed any of the Trust Securities shall cease to be such Administrator before the Certificates so signed shall be delivered by the Trust, such Certificates nevertheless may be delivered as though the person who signed such Certificates had not ceased to be such Administrator. Any Certificate may be signed on behalf of the Trust by such person who, at the actual date of execution of such Certificate, shall be an Administrator of the Trust, although at the date of the execution and delivery of the Declaration any such person was not such an Administrator. A Capital Security shall not be valid until the Certificate evidencing it is authenticated by the manual or facsimile signature of an Authorized Officer of the Institutional Trustee. Such signature shall be conclusive evidence that the Certificate evidencing such Capital Security has been authenticated under this Declaration. Upon written order of the Trust signed by one Administrator, the Institutional Trustee shall authenticate one or more Certificates evidencing the Capital Securities for original issue. The Institutional Trustee may appoint an authenticating agent that is a U.S. Person acceptable to the Sponsor to authenticate the Certificates evidencing Capital Securities. A Common Security need not be so authenticated and shall be valid upon execution by one or more Administrators.
(c) The consideration received by the Trust for the issuance of the Trust Securities shall constitute a contribution to the capital of the Trust and shall not constitute a loan to the Trust.
(d) Upon issuance of the Trust Securities as provided in this Declaration, the Trust Securities so issued shall be deemed to be validly issued, fully paid and non-assessable, and will entitle each Holder thereof to the benefits provided by this Declaration.
(e) Every Person, by virtue of having become a Holder in accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration and the Guarantee.
Section 7.2. PAYING AGENT, TRANSFER AGENT, CALCULATION AGENT AND REGISTRAR.
(a) The Trust shall maintain in Wilmington, Delaware (i) an office or agency where the Trust Securities may be presented for payment (the "Paying Agent") and (ii) an office or agency where Trust Securities may be presented for registration of transfer or exchange (the "Transfer Agent"). The Trust shall keep or cause to be kept at such office or agency a register
(the "Securities Register") for the purpose of registering Trust Securities and transfers and exchanges of Trust Securities, such Securities Register to be held by a registrar (the "Registrar"). The Administrators may appoint the Paying Agent, the Registrar and the Transfer Agent, and may appoint one or more additional Paying Agents, one or more co-Registrars, or one or more co-Transfer Agents in such other locations as it shall determine. The term "Paying Agent" includes any additional Paying Agent, the term "Registrar" includes any additional Registrar or co-Registrar and the term "Transfer Agent" includes any additional Transfer Agent or co-Transfer Agent. The Administrators may change any Paying Agent, Transfer Agent or Registrar at any time without prior notice to any Holder. The Administrators shall notify the Institutional Trustee of the name and address of any Paying Agent, Transfer Agent and Registrar not a party to this Declaration. The Administrators hereby initially appoint the Institutional Trustee to act as Paying Agent, Transfer Agent and Registrar for the Capital Securities and the Common Securities at its Corporate Trust Office. The Institutional Trustee or any of its Affiliates in the United States may act as Paying Agent, Transfer Agent or Registrar.
Section 7.3. FORM AND DATING.
(a) The Capital Securities shall be evidenced by one or more Certificates and the Institutional Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A-1-A, and the Common Securities shall be evidenced by one or more Certificates substantially in the form of Exhibit A-2, each of which is hereby incorporated in and expressly made a part of this Declaration. Certificates may be typed, printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrators, as conclusively evidenced by their execution thereof. The Certificates evidencing Trust Securities may have letters, "CUSIP" or other numbers, notations or other marks of identification or designation and such legends or endorsements required by law, stock exchange rule, agreements to which the Trust is subject, if any, or usage (PROVIDED, THAT any such notation, legend or endorsement is in a form acceptable to the Sponsor). The Trust at the direction of the Sponsor shall furnish any such legend not contained in Exhibit A-1-A to the Institutional Trustee in writing. Each Capital Security Certificate shall be dated the date of its authentication. The terms and provisions of the Trust Securities set forth in Annex I and the forms of Certificates set forth in Exhibits A-1 and A-2 are part of the terms of this Declaration and to the extent applicable, the Institutional Trustee, the Delaware Trustee, the Administrators and the Sponsor, by their execution and delivery of this Declaration, expressly agree to such terms and provisions and to be bound thereby. Capital Securities will be issued only in blocks having an aggregate Liquidation Amount of not less than $100,000.
(b) GLOBAL CAPITAL SECURITY. Capital Securities offered and sold to QIBs in reliance on Rule 144A, as provided in the Purchase Agreement, shall be issued in the form of a single permanent global Capital Security in definitive, fully registered form without distribution coupons and shall include, prior to the Resale Restriction Termination Date, the appropriate global legends and Restricted Securities Legend set forth in Exhibit A-1-A hereto (the "Global Capital Security"). Global Capital Securities which shall be deposited on behalf of the purchasers of the Capital Securities represented thereby with the Institutional Trustee, at its Corporate Trust Office, as custodian for the Clearing Agency, and registered in the name of the Clearing Agency or a nominee of the Clearing Agency, duly executed by the Trust and authenticated by the Institutional Trustee as hereinafter provided. The number of Capital
Securities represented by the Global Capital Security may from time to time be increased or decreased by adjustments made on the records of the Institutional Trustee and the Clearing Agency or its nominee as hereinafter provided.
(c) BOOK-ENTRY PROVISIONS. This Section 7.3(b) shall apply only to the Global Capital Security as may be authorized by the Trust to be deposited with or on behalf of the Clearing Agency.
An Administrator shall execute and the Institutional Trustee shall, upon receipt of an Issuer Order to do so, authenticate and make available for delivery initially a single Global Capital Security that (i) shall be registered in the name of Cede & Co. or other nominee of such Clearing Agency, and (ii) shall be delivered by the Institutional Trustee to such Clearing Agency or pursuant to such Clearing Agency's written instructions or, if no such written instructions are received by the Institutional Trustee, held by the Institutional Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency ("Participants") shall have no rights under this Declaration with respect to the Global Capital Security held on their behalf by the Clearing Agency or by the Institutional Trustee as the custodian of the Clearing Agency or under such Global Capital Security, and the Clearing Agency may be treated by the Trust, the Institutional Trustee and any agent of the Trust or the Institutional Trustee as the absolute owner of such Global Capital Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Trust, the Institutional Trustee or any agent of the Trust or the Institutional Trustee from giving effect to any written certification, proxy or other authorization furnished by the Clearing Agency or impair, as between the Clearing Agency and its Participants, the operation of customary practices of such Clearing Agency governing the exercise of the rights of a holder of a beneficial interest in the Global Capital Security.
Subject to the provisions of Section 7.3(c), and to the fullest extent permitted by law, the Holder of the Global Capital Security may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to take any action which such Holder is entitled to take under this Declaration or the Trust Securities.
(d) DEFINITIVE CAPITAL SECURITIES. Except as provided in
Section 7.4 or 9.2(e)(i), owners of beneficial interests in the Global Capital
Security will not be entitled to receive physical delivery of Definitive Capital
Securities. Purchasers of Securities who are "accredited investors" (as defined
in Rule 501(a)(l), (2), (3), (7) or (8) under the Securities Act) and who are
not QIBs will receive Capital Securities in the form of individual certificates
in definitive, fully registered form without distribution coupons and shall
include, prior to the Resale Restriction Termination Date, the Restricted
Securities Legend set forth in Exhibit A-1-A hereto ("Restricted Definitive
Capital Securities"); PROVIDED, HOWEVER, that upon registration of transfer of
such Restricted Definitive Capital Securities to a QIB, such Restricted
Definitive Capital Securities will, unless the Global Capital Security has
previously been exchanged, be exchanged for an interest in the Global Capital
Security pursuant to the provisions of Section 9.2. Restricted Definitive
Capital Securities will bear the Restricted Securities Legend set forth on
Exhibit A-1-A unless removed in accordance with Section 9.2.
(e) The Trust in issuing the Capital Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Institutional Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders of Capital Securities; PROVIDED, THAT, any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Capital Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Capital Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Sponsor will promptly notify the Institutional Trustee of any change in the CUSIP numbers.
Section 7.4. PAYING AGENT TO HOLD MONEY IN TRUST. The Trust shall require each Paying Agent other than the Institutional Trustee to agree in writing that such Paying Agent will hold in trust for the benefit of Holders or the Institutional Trustee all money held by such Paying Agent for the payment of liquidation amounts or Distributions, and will notify the Institutional Trustee if there are insufficient funds for such purpose. While any such insufficiency continues, the Institutional Trustee may require a Paying Agent to pay all money held by it to the Institutional Trustee. The Trust at any time may require a Paying Agent to pay all money held by it to the Institutional Trustee and to account for any money disbursed by it. Upon payment over to the Institutional Trustee, the Paying Agent (if other than the Trust or an Affiliate of the Trust) shall have no further liability for the money. If the Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.
Section 7.5. TEMPORARY CERTIFICATES. Until definitive Certificates are ready for delivery, the Administrators may prepare and execute on behalf of the Trust and, in the case of Definitive Capital Securities, the Institutional Trustee shall, upon receipt of an Issuer Order to do so, authenticate, temporary Certificates. Temporary Certificates shall be substantially in the form of definitive Certificates but may have variations that the Administrators consider appropriate for temporary Certificates. Without unreasonable delay, the Administrators shall prepare and execute on behalf of the Trust and, in the case of the Definitive Capital Securities, the Institutional Trustee shall, upon receipt of an Issuer Order to do so, authenticate definitive Certificates in exchange for temporary Certificates.
Section 7.6. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If:
(a) any mutilated Certificates should be surrendered to the Registrar, or if the Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Certificate; and
(b) the related Holder shall deliver to the Registrar, the Administrators and the Institutional Trustee such security or indemnity as may be reasonably required by them to keep each of them harmless;
then, in the absence of notice that such Certificate shall have been acquired by a bona fide purchaser, an Administrator on behalf of the Trust shall execute (and in the case of a Capital Security Certificate, the Institutional Trustee shall authenticate) and deliver to such Holder, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like denomination. In connection with the issuance of any new Certificate under
this Section, the Registrar or the Administrators may require such Holder to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any Certificate executed and delivered pursuant to this Section shall constitute conclusive evidence of an ownership interest in the relevant Trust Securities, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 7.7. CANCELLATION. The Administrators at any time may deliver Certificates evidencing Trust Securities to the Institutional Trustee for cancellation. The Registrar shall forward to the Institutional Trustee any Certificates evidencing Trust Securities surrendered to it for registration of transfer, redemption or payment. The Institutional Trustee shall promptly cancel all Certificates surrendered for registration of transfer, payment, replacement or cancellation and shall dispose of such canceled Certificates as the Administrators direct. The Administrators may not issue new Certificates to replace Certificates evidencing Trust Securities that have been paid or, except for Certificates surrendered for purposes of the transfer or exchange of the Trust Securities evidenced thereby, that have been delivered to the Institutional Trustee for cancellation.
Section 7.8. RIGHTS OF HOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the Institutional Trustee (in its capacity as such) in accordance with Section 3.5, and the Holders shall not have any right or title therein other than the undivided beneficial interest in the assets of the Trust conferred by their Trust Securities and they shall have no right to call for any partition or division of property, profits or rights of the Trust except as described below. The Trust Securities shall be personal property giving only the rights specifically set forth therein and in this Declaration. The Trust Securities shall have no, and the issuance of the Trust Securities shall not be subject to, preemptive or other similar rights and when issued and delivered to Holders against payment of the purchase price therefor, the Trust Securities will be fully paid and nonassessable by the Trust.
(b) For so long as any Capital Securities remain outstanding, if, upon an Indenture Event of Default, the Indenture Trustee fails or the holders of not less than 25% in principal amount of the outstanding Debt Securities fail to declare the principal of all of the Debt Securities to be immediately due and payable, the Holders of not less than a Majority in Liquidation Amount of the Capital Securities then outstanding shall have the right to make such declaration by a notice in writing to the Institutional Trustee, the Sponsor and the Indenture Trustee.
(c) At any time after the acceleration of maturity of the Debt Securities has been made and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as provided in the Indenture, if the Institutional Trustee, subject to the provisions hereof, fails to annul any such acceleration and waive such default, the Holders of a Majority in Liquidation Amount of the Capital Securities, by written notice to the Institutional Trustee, the Sponsor and the Indenture Trustee, may rescind and annul such acceleration and its consequences if:
(i) the Sponsor has paid or deposited with the Indenture Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of the Debt Securities;
(B) any accrued Deferred Interest on all of the Debt Securities;
(C) all payments on any Debt Securities that have become due otherwise than by such acceleration and interest and Deferred Interest thereon at the rate borne by the Debt Securities; and
(D) all sums paid or advanced by the Indenture Trustee under the Indenture and the reasonable compensation, documented expenses, disbursements and advances of the Indenture Trustee and the Institutional Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debt Securities, other than the non-payment of the principal of or premium, if any, on the Debt Securities that has become due solely by such acceleration, have been cured or waived as provided in Section 5.07 of the Indenture.
(d) The Holders of a Majority in liquidation amount of the Capital Securities may, on behalf of the Holders of all the Capital Securities, waive any past Default or Event of Default, except a Default or Event of Default arising from the non-payment of principal of or premium, if any, or interest or Liquidated Damages, if any, on the Debt Securities (unless such Default or Event of Default has been cured and a sum sufficient to pay all matured installments of Liquidated Damages, if any, interest, premium, if any, and principal due otherwise than by acceleration has been deposited with the Indenture Trustee) or a Default or Event of Default in respect of a covenant or provision that under the Indenture cannot be modified or amended without the consent of the holder of each outstanding Debt Security. No such waiver shall affect any subsequent default or impair any right consequent thereon.
(e) Upon receipt by the Institutional Trustee of written notice declaring such an acceleration, or rescission and annulment thereof, by Holders of any part of the Capital Securities, a record date shall be established for determining Holders of outstanding Capital Securities entitled to join in such notice, which record date shall be at the close of business on the day the Institutional Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; PROVIDED, THAT, unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day that is 90 days after such record date, such notice of declaration of acceleration, or rescission and annulment, as the case may be, shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice that has been canceled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1. DISSOLUTION AND TERMINATION OF TRUST. (a) The Trust shall dissolve on the first to occur of :
(i) April 14, 2039, the expiration of the term of the Trust;
(ii) a Bankruptcy Event with respect to the Sponsor, the Trust or the Debt Security Issuer;
(iii) other than in connection with a merger, consolidation or similar transaction not prohibited by the Indenture, this Declaration or the Guarantee, as the case may be, the filing of a certificate of dissolution or its equivalent with respect to the Sponsor or upon the revocation of the charter of the Sponsor and the expiration of 90 days after the date of revocation without a reinstatement thereof;
(iv) the distribution of all of the Debt Securities to the Holders of the Trust Securities, upon exercise of the right of the Holders of all of the outstanding Common Securities to dissolve the Trust as provided in Annex I hereto;
(v) the entry of a decree of judicial dissolution of any Holder of the Common Securities, the Sponsor, the Trust or the Debt Security Issuer;
(vi) when all of the Trust Securities are then subject to redemption and the amounts necessary for redemption thereof shall have been paid to the Holders in accordance with the terms of the Trust Securities; or
(vii) before the issuance of any Trust Securities, with the consent of all of the Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to in Section 8.1(a), and after satisfaction of liabilities to creditors of the Trust as required by applicable law, including ss.3808 of the Statutory Trust Act, and subject to the terms set forth in Annex I, the Institutional Trustee shall terminate the Trust by filing a certificate of cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1. TRANSFER OF TRUST SECURITIES.
(a) Trust Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Declaration and in accordance with the terms of the Trust Securities. To the fullest extent permitted by law, any transfer or purported transfer of any Trust Security not made in accordance with this Declaration and the Trust Securities shall be null and void and will be deemed to be of no legal effect whatsoever and any such purported transferee shall be deemed not to be the Holder of such Trust Securities for any purpose, including, but not limited to, the receipt of Distributions on such Trust Securities, and such transferee shall be deemed to have no interest whatsoever in such Trust Securities.
(b) Upon issuance of the Common Securities, the Sponsor shall acquire and retain beneficial and record ownership of the Common Securities and, for so long as the Trust Securities remain outstanding, the Sponsor shall maintain 100% ownership of the Common Securities; provided, however, that any permitted successor of the Debt Security Issuer under the Indenture may succeed to the Sponsor's ownership of the Common Securities.
(c) Neither the Trust nor the Registrar shall be required (i) to issue Certificates representing Trust Securities or register the transfer of, or exchange any Trust Securities during a period beginning at the opening of business 15 days before the day of any selection of Trust Securities for redemption and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of the Trust Securities to be redeemed, or (ii) to register the transfer or exchange of any Trust Security so selected for redemption in whole or in part, except the unredeemed portion of any Trust Security being redeemed in part.
Section 9.2. TRANSFER PROCEDURES AND RESTRICTIONS.
(a) GENERAL. Except as otherwise provided in Section 9.2(b), if Capital Securities are issued upon the transfer, exchange or replacement of Capital Securities bearing the Restricted Securities Legend set forth in Exhibit A-1-A hereto, or if a request is made to remove such Restricted Securities Legend on Capital Securities, the Capital Securities so issued shall bear the Restricted Securities Legend, or the Restricted Securities Legend shall not be removed, as the case may be, unless there is delivered to the Trust and the Institutional Trustee such satisfactory evidence, as may be reasonably required by the Trust and the Institutional Trustee, that neither the Restricted Securities Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof are made pursuant to an exemption from the registration requirements of the Securities Act or, with respect to Restricted Capital Securities, that such Securities are not "restricted" within the meaning of Rule 144. Upon provision of such satisfactory evidence, the Institutional Trustee shall, upon receipt of an Issuer Order to do so, authenticate and deliver Capital Securities that do not bear the Restricted Securities Legend. Such satisfactory evidence shall include (i) an Opinion of Counsel or (ii) if to a QIB, a certificate of the transferor substantially in the form set forth as Exhibit C hereto; or (iii) if to an
"accredited investor" within the meaning of Rule 501 (a)(1), (2), (3), (7) or
(8) under the Securities Act, a certificate of the transferee substantially in
the form set forth as Exhibit B hereto; or (iv) if to a non-"U.S. Person" in an
"offshore transaction" under, and within the meaning of, Regulation S under the
Securities Act, a certificate of the transferee substantially in the form set
forth as Exhibit D hereto. Each certificate furnished pursuant to this Section
9.2(a) may be an original or a copy (which may be furnished by facsimile or
other form of electronic transmission).
(b) TRANSFERS AFTER EFFECTIVENESS OF A REGISTRATION STATEMENT. After the effectiveness of a Registration Statement with respect to any Capital Securities, the Restricted Securities Legend on such Capital Securities will cease to apply (other than the legend requiring that transfers of Capital Securities be made in blocks having an aggregate Liquidation Amount of not less than $100,000 (100 Capital Securities) and multiples of $1,000 in excess thereof and such restrictions as may be required by law), and beneficial interests in the Global Capital Security without legends will be available to transferees of such Capital Securities, upon exchange of the transferring Holder's Restricted Definitive Capital Security or directions to transfer such Holder's beneficial interest in the Global Capital Security, as the case may be. No such transfer or exchange of a Restricted Definitive Capital Security or of an interest in the Global Capital Security shall be effective unless the transferor delivers to the Institutional Trustee a certificate in a form substantially similar to that attached hereto as the form of "Assignment" in Exhibit A-1-A. Except as otherwise provided in Section 9.2(m), after the effectiveness of a Registration Statement, an Administrator on behalf of the Trust shall issue and the Institutional Trustee, upon receipt of an Issuer Order to do so, shall authenticate a Capital Security without the Restricted Securities Legend to deposit with the Clearing Agency to evidence transfers of beneficial interests from the Global Capital Security or Restricted Definitive Capital Securities, as the case maybe.
(c) TRANSFER AND EXCHANGE OF DEFINITIVE CAPITAL SECURITIES. When Definitive Capital Securities are presented to the Registrar or co-registrar (x) to register the transfer of such Definitive Capital Securities or (y) to exchange such Definitive Capital Securities which became mutilated, destroyed, defaced, stolen or lost, for an equal number of Definitive Capital Securities, the Registrar or co-registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met;
PROVIDED, HOWEVER, that the Definitive Capital Securities surrendered for registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Trust and the Registrar or co-registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(ii) in the case of Restricted Definitive Capital Securities, shall be accompanied by:
(A) if such Restricted Definitive Capital Securities are being delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, certification(s) from such Holder to that effect; or
(B) if such Restricted Definitive Capital Securities are being transferred: (i) certification(s) in a form substantially similar to that attached hereto as the form of "Assignment" in Exhibit A-1-A, (ii) if the Trust or Registrar so requests, evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Restricted Securities Legend and (iii) a certificate of (x) the transferor substantially in the form set forth as Exhibit C hereto if the transferee is a QIB, (y) the transferee substantially in the form set forth as Exhibit B hereto if the transferee is an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3), (7) or 8 under the Securities Act or (z) the transferee substantially in the form set forth as Exhibit D hereto if the transferee is a non-"U.S. Person" in an "offshore transaction" under and within the meaning of Regulation S under the Securities Act
(d) RESTRICTIONS ON TRANSFER OF A DEFINITIVE CAPITAL SECURITY FOR A BENEFICIAL INTEREST IN THE GLOBAL CAPITAL SECURITY. A Definitive Capital Security may not be exchanged for a beneficial interest in the Global Capital Security except upon satisfaction of the requirements set forth below. Upon receipt by the Institutional Trustee of a Definitive Capital Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Institutional Trustee, together with:
(i) if such Definitive Capital Security is a Restricted Definitive Capital Security, certification(s) in a form substantially similar to that attached hereto as the form of "Assignment" in Exhibit A-1-A;
(ii) a certificate of the transferor substantially in the form set forth as Exhibit C hereto; and
(iii) whether or not such Definitive Capital Security is a Restricted Definitive Capital Security, written instructions directing the Institutional Trustee to make, or to direct the Clearing Agency to make, an adjustment on its books and records with respect to the Global Capital Security to reflect an increase in the number of the Capital Securities represented by such Global Capital Security,
then the Institutional Trustee shall cancel such Definitive Capital Security and cause, or direct the Clearing Agency to cause, the aggregate number of Capital Securities represented by the Global Capital Security to be increased accordingly. If the Global Capital Security is not then outstanding, an Administrator on behalf of the Trust shall execute and issue and the Institutional Trustee shall, upon receipt of an Issuer Order to do so, authenticate a new Global Capital Security representing an appropriate number of Capital Securities.
(e) TRANSFER AND EXCHANGE OF THE GLOBAL CAPITAL SECURITY. Subject to Section 9.2(g), the transfer and exchange of the Global Capital Security or beneficial interests therein shall be effected through the Clearing Agency in accordance with this Declaration (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Clearing Agency therefor.
(f) TRANSFER OF A BENEFICIAL INTEREST IN THE GLOBAL CAPITAL SECURITY FOR A DEFINITIVE CAPITAL SECURITY.
(i) Any Person having a beneficial interest in the Global Capital Security may upon request, but only upon 20 days prior notice to the Institutional Trustee, and if accompanied by the information specified below, exchange such beneficial interest for a Definitive Capital Security representing the same number of Capital Securities. Upon receipt by the Institutional Trustee from the Clearing Agency or its nominee on behalf of any Person having a beneficial interest in the Global Capital Security of written instructions or such other form of instructions as is customary for the Clearing Agency or the Person designated by the Clearing Agency as having such a beneficial interest in a Restricted Capital Security and certification(s) from the transferor in a form substantially similar to that attached hereto as the form of "Assignment" in Exhibit A-1-A, which may be submitted by facsimile, then the Institutional Trustee will cause the aggregate number of Capital Securities represented by the Global Capital Security to be reduced on its books and records and, following such reduction, an Administrator on behalf of the Trust will execute and issue and the Institutional Trustee will, upon receipt of an Issuer Order to do so, authenticate and make available for delivery to the transferee a Definitive Capital Security.
(ii) Definitive Capital Securities issued in exchange for a beneficial interest in the Global Capital Security pursuant to this Section 9.2(f) shall be registered in such names and in such authorized denominations as the Clearing Agency, pursuant to instructions from its Clearing Agency Participants or indirect participants or otherwise, shall instruct the Institutional Trustee in writing. The Institutional Trustee shall deliver such Capital Securities to the Persons in whose names such Capital Securities are so registered in accordance with such instructions of the Clearing Agency.
(g) RESTRICTIONS ON TRANSFER AND EXCHANGE OF THE GLOBAL CAPITAL SECURITY. Notwithstanding any other provisions of this Declaration (other than the provisions set forth in subsection (h) of this Section 9.2), the Global Capital Security may not be transferred as a whole except by the Clearing Agency to a nominee of the Clearing Agency or another nominee of the Clearing Agency or by the Clearing Agency or any such nominee to a successor Clearing Agency or a nominee of such successor Clearing Agency.
(h) AUTHENTICATION OF DEFINITIVE CAPITAL SECURITIES. If at any time:
(i) a Default or an Event of Default has occurred and is continuing,
(ii) at the Debt Security Issuer's request, the Clearing Agency may notify Capital Security Beneficial Owners that they may request the Clearing Agency to cause the issuance of Definitive Capital Securities, or
(iii) the Clearing Agency notifies the Sponsor that
it is unwilling or unable to continue as Clearing Agency for
such Global Capital Security or if at any time such Clearing
Agency ceases to be a "clearing agency" registered under the
Exchange Act, and, in each case, a clearing agency is not
appointed by the Sponsor within 90 days of receipt of such
notice or of becoming aware of such condition, then an
Administrator on behalf of the Trust will execute, and the
Institutional Trustee will, upon receipt of an Issuer Order to
do so, authenticate and make available for delivery Definitive
Capital Securities, equal in number to the number of Capital
Securities represented by the Global Capital Security, in
exchange for such Global Capital Security. Any portion of the
Global Capital Security transferred pursuant to this Section
shall be registered in such names as the Clearing Agency shall
direct. Any Definitive Capital Security delivered in exchange
for an interest in a Global Capital Security with a Restricted
Securities Legend shall, except as otherwise provided by
Section 9.2, bear the Restricted Securities Legend set forth
in Exhibit A-1-A hereto.
(i) Prior to the Resale Restriction Termination Date, the Capital Securities may not be transferred except in compliance with restrictions on transfer set forth in the legend set forth in Exhibit A-1-A (the "Restricted Securities Legend"), and except as otherwise contemplated in Section 9.2(a), each Certificate evidencing outstanding Capital Securities shall bear the Restricted Securities Legend as set forth in Exhibit A-1-A.
(j) Upon any sale or transfer of a Restricted Capital Security (including any Restricted Capital Security represented by the Global Capital Security) pursuant to an effective registration statement under the Securities Act or pursuant to Rule 144:
(A) in the case of any Restricted Definitive Capital Security, at the direction of the Administrators, the Registrar shall permit the Holder thereof to exchange such Restricted Capital Security for a Definitive Capital Security that does not bear the Restricted Securities Legend at the direction of the Administrators, and rescind any restriction on the transfer of such Restricted Capital Security; and
(B) in the case of any Restricted Capital Security that is represented by the Global Capital Security, the Registrar shall
permit the Capital Security Beneficial Owner to exchange its interest in the Global Capital Security for another Global Capital Security that does not bear the Restricted Securities Legend.
(k) CANCELLATION OR ADJUSTMENT OF GLOBAL CAPITAL SECURITY. At such time as all beneficial interests in the Global Capital Security have either been exchanged for Definitive Capital Securities to the extent permitted by this Declaration or redeemed, repurchased or canceled in accordance with the terms of this Declaration, such Global Capital Security shall be returned to the Clearing Agency for cancellation or retained and canceled by the Institutional Trustee. At any time prior to such cancellation, if any beneficial interest in the Global Capital Security is exchanged for Definitive Capital Securities, Capital Securities represented by such Global Capital Security shall be reduced and an adjustment shall be made on the books and records of the Institutional Trustee and the Clearing Agency or its nominee to reflect such reduction.
(l) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF CAPITAL SECURITIES.
(i) To permit registrations of transfers and exchanges, an Administrator on behalf of the Trust shall execute and the Institutional Trustee shall, upon receipt of an Issuer Order to do so, authenticate Definitive Capital Securities and the Global Capital Security at the Registrar's or co-registrar's request in accordance with the terms of this Declaration.
(ii) Registrations of transfers or exchanges will be effected without charge, but only upon payment (with such indemnity as the Trust or the Sponsor may reasonably require) in respect of any tax or other governmental charge that may be imposed in relation to it, other than exchanges relating to partial redemptions and Section 7.5 that do not involve any transfer.
(iii) The Registrar or co-registrar shall not be required to register the transfer of or exchange of (a) Capital Securities during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption and ending at the close of business on the day of such mailing or (b) any Capital Security so selected for redemption in whole or in part, except the unredeemed portion of any Capital Security being redeemed in part.
(iv) Prior to the due presentation for registration of transfer of any Capital Security, the Trust, the Institutional Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat the Person in whose name a Capital Security is registered as the absolute owner of such Capital Security for the purpose of receiving Distributions on such Capital Security and for all other purposes whatsoever, and none of the Trust, the
Institutional Trustee, the Paying Agent, the Registrar or any co-registrar shall be affected by notice to the contrary.
(v) All Capital Securities issued upon any registration of transfer or exchange pursuant to the terms of this Declaration shall evidence the same security and shall be entitled to the same benefits under this Declaration as the Capital Securities surrendered upon such registration of transfer or exchange.
(m) EXCHANGE OF SERIES A CAPITAL SECURITIES FOR SERIES B CAPITAL SECURITIES. The Series A Capital Securities shall be exchanged for Series B Capital Securities pursuant to the terms of the Exchange Offer if the following conditions are satisfied: The Sponsor shall present the Institutional Trustee with an Officers' Certificate certifying the following:
(A) upon issuance of the Series B Capital Securities, the transactions contemplated by the Exchange Offer have been consummated; and
(B) the number of Series A Capital Securities properly tendered in the Exchange Offer that are represented by the Global Capital Security and the number of Series A Capital Securities properly tendered in the Exchange Offer that are represented by Definitive Capital Securities, the name of each Holder of such Definitive Capital Securities and its Liquidation Amount and the name and address to which Definitive Capital Securities for Series B Capital Securities shall be registered and sent for each such Holder.
The Institutional Trustee, upon receipt of (i) such Officers' Certificate, (ii) an Opinion of Counsel (x) to the effect that the Series B Capital Securities and the Series B Guarantee have been registered under Section 5 of the Securities Act and that this Declaration and the Series B Guarantee have been qualified under the Trust Indenture Act and (y) with respect to the matters set forth in Section 3(q) of the Registration Rights Agreement, shall authenticate (A) the Global Capital Security, executed and delivered by the Trust to the Institutional Trustee, for Series B Capital Securities in aggregate Liquidation Amount equal to the aggregate Liquidation Amount of Series A Capital Securities represented by the Global Capital Security indicated in such Officers' Certificate as having been properly tendered and (B) Definitive Capital Securities, executed and delivered by the Trust to the Institutional Trustee, representing Series B Capital Securities registered in the names and in the Liquidation Amounts indicated in such Officers' Certificate.
Upon any properly tendered and accepted Series A Capital Securities in the Exchange Offer that are represented by a Global Security, the Institutional Trustee shall make an endorsement on the Global Capital Security for Series A Capital Securities indicating the
reduction in the number and aggregate Liquidation Amount represented thereby as a result of the Exchange Offer.
The Trust shall deliver such authenticated Definitive Capital Securities for Series B Capital Securities to the Holders thereof as indicated in such Officers' Certificate.
(n) NO OBLIGATION OF THE INSTITUTIONAL TRUSTEE.
(i) The Institutional Trustee shall have no responsibility or obligation to any Capital Security Beneficial Owner, a Participant in the Clearing Agency or other Person with respect to the accuracy of the records of the Clearing Agency or its nominee or of any Participant thereof, with respect to any ownership interest in the Capital Securities or with respect to the delivery to any Participant, Capital Security Beneficial Owner or other Person (other than the Clearing Agency) of any notice (including any notice of redemption) or the payment of any amount under or with respect to such Capital Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Capital Securities shall be given or made only to or upon the order of the Holders (which shall be the Clearing Agency or its nominee in the case of the Global Capital Security). The rights of Capital Security Beneficial Owners shall be exercised only through the Clearing Agency subject to the applicable rules and procedures of the Clearing Agency. The Institutional Trustee may conclusively rely and shall be fully protected in relying upon information furnished by the Clearing Agency or any agent thereof with respect to its Participants and any Capital Security Beneficial Owners.
(ii) The Institutional Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Declaration or under applicable law with respect to any transfer of any interest in any Capital Security (including any transfers between or among Clearing Agency Participants or Capital Security Beneficial Owners) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Declaration, and to examine the same to determine whether or not on their face they comply as to form with the express requirements hereof.
(o) MINIMUM TRANSFERS. The Series A Capital Securities and, if and when issued, Series B Capital Securities may only be transferred in minimum blocks of $100,000 aggregate Liquidation Amount (100 Capital Securities) and multiples of $1,000 in excess thereof. Any attempted transfer of Series A Capital Securities or Series B Capital Securities in a block having an aggregate Liquidation Amount of less than $100,000 shall be deemed to be void and of no legal effect whatsoever. Any such purported transferee shall be deemed not to be a Holder of such Series A Capital Securities or Series B Capital Securities for any purpose,
including, but not limited to, the receipt of Distributions on such Capital Securities, and such purported transferee shall be deemed to have no interest whatsoever in such Capital Securities.
Section 9.3. DEEMED SECURITY HOLDERS. The Trust, the Administrators, the Trustees, the Paying Agent, the Transfer Agent or the Registrar may treat the Person in whose name any Trust Security shall be registered on the Securities Register of the Trust as the sole Holder and owner of such Trust Security for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Trust Security on the part of any other Person, whether or not the Trust, the Administrators, the Trustees, the Paying Agent, the Transfer Agent or the Registrar shall have actual or other notice thereof.
Section 9.4. BOOK-ENTRY INTERESTS.
The Global Capital Security shall initially be registered on the books and records of the Trust in the name of Cede & Co., the nominee of the Clearing Agency and no Capital Security Beneficial Owner will receive physical delivery of a definitive Capital Security certificate (a "Capital Security Certificate") representing such Capital Security Beneficial Owner's interests in such Global Capital Security, except as provided in Section 9.2 and Section 7.4. Unless and until Definitive Capital Securities have been issued to the Capital Security Beneficial Owners pursuant to Section 9.2 or Section 7.4
(a) the provisions of this Section 9.4 shall be in full force and effect;
(b) the Trust and the Trustees shall be entitled to deal with the Clearing Agency for all purposes of this Declaration (including the payment of Distributions on the Global Capital Security and receiving approvals, votes or consents hereunder) as the sole Holder of the Global Capital Security and shall have no obligation to the Capital Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Capital Security Beneficial Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Capital Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants, and the Clearing Agency shall receive and transmit payments of Distributions on the Global Capital Security to such Clearing Agency Participants; provided, HOWEVER that solely for the purposes of determining whether the Holders of the requisite amount of Capital Securities have voted on any matter provided for in this Declaration, the Trustees, with respect to the Global Capital Security, may conclusively rely on, and shall be protected in relying on, any written instrument (including a proxy) delivered to the Trustees by the Clearing Agency setting forth the Capital Security Beneficial Owners' votes or assigning the right to vote on any matter to any other Persons either in whole or in part; and the Clearing Agency will also make book-entry transfers among the Clearing Agency Participants.
(e) NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Capital Security Holders is required to be given by a Trustee under this Declaration, such Trustee shall give all such notices and communications specified herein to be given to the Holder of the Global Capital Security to the Clearing Agency and shall have no notice obligations to the Capital Security Beneficial Owners.
Section 9.5. APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as securities depositary with respect to the Capital Securities, the Administrators may, in their sole discretion, appoint a successor Clearing Agency with respect to such Capital Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS
Section 10.1. LIABILITY. (a) Except as expressly set forth in this Declaration, the Guarantee and the terms of the Trust Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders of the Trust Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of the Trust Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the debts and obligations of the Trust (other than with respect to the Trust Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Statutory Trust Act, the Holders of the Trust Securities shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware, except as otherwise specifically set forth herein.
Section 10.2. EXCULPATION. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person (other than an Administrator) shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence, willful misconduct or bad faith with respect to such acts or omissions and except that an Administrator shall be liable for any such loss, damage or claim incurred by reason of such Administrator's gross negligence, willful misconduct or bad faith with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and, if selected by such Indemnified Person, has been selected by such Indemnified Person with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Trust Securities might properly be paid.
Section 10.3. FIDUCIARY DUTY. (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the Institutional Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of the Indemnified Person.
(b) Whenever in this Declaration an Indemnified Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law.
Section 10.4. INDEMNIFICATION. (a)
(i) The Sponsor shall indemnify, to the fullest extent permitted by law, any Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Trust) by reason of the fact that such Person is or was an Indemnified Person against expenses (including attorneys' fees and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Person in connection with such action, suit or proceeding if such Person acted in good faith and in a manner such Person reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person did not act in good faith and in a manner which such Person reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such conduct was unlawful.
(ii) The Sponsor shall indemnify, to the fullest extent permitted by law, any Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Trust to procure a judgment in its favor by reason of the fact that such Person is or was an Indemnified Person against expenses (including attorneys' fees and expenses) actually and reasonably incurred by such Person in connection with the defense or settlement of such action or suit if such Person acted in good faith and in a manner such Person reasonably believed to be in or not opposed to the best interests of the Trust and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such Indemnified Person shall have been adjudged to be liable to the Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such Person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper.
(iii) To the extent that an Indemnified Person shall
be successful on the merits or otherwise (including dismissal
of an action without prejudice or the settlement of an action
without admission of liability) in defense of any action, suit
or proceeding referred to in paragraphs (i) and (ii) of this
Section 9.4(a), or in defense of any claim, issue or matter
therein, such Person shall be indemnified, to the fullest
extent permitted by law, against expenses (including
attorneys' fees and expenses) actually and reasonably incurred
by such Person in connection therewith.
(iv) Any indemnification of an Administrator under paragraphs (i) and (ii) of this Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor only as authorized in the specific case upon a determination that indemnification of the Indemnified Person is proper in the circumstances because such Person has met the applicable standard of conduct set forth in paragraphs (i) and (ii). Such determination shall be made (A) by the Administrators by a majority vote of a Quorum consisting of such Administrators who were not parties to such action, suit or proceeding, (B) if such a Quorum is not obtainable, or, even if obtainable, if a Quorum of disinterested Administrators so directs, by independent legal counsel in a written opinion, or (C) by the Common Security Holder of the Trust.
(v) To the fullest extent permitted by law, expenses
(including attorneys' fees and expenses) incurred by an
Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a)
shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Indemnified Person to
repay such amount if it shall ultimately be determined that
such Person is not entitled to be indemnified by the Sponsor
as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Sponsor if a
determination is reasonably and promptly made (1) in the case
of a Company Indemnified Person (A) by the Administrators by a
majority vote of a Quorum of disinterested Administrators, (B)
if such a Quorum is not obtainable, or, even if obtainable, if
a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion or (C) by the
Common Security Holder of the Trust, that, based upon the
facts known to the Administrators, counsel or the Common
Security Holder at the time such determination is made, such
Indemnified Person acted in bad faith or in a manner that such
Person either believed to be opposed to or did not believe to
be in the best interests of the Trust, or, with respect to any
criminal proceeding, that such Indemnified Person believed or
had reasonable cause to believe such conduct was unlawful, or
(2) in the case of a Fiduciary Indemnified Person, by
independent legal counsel in a written opinion that, based
upon the facts known to the counsel at the time such
determination is made, such Indemnified Person acted in bad
faith or in a manner that such Indemnified Person either
believed to be opposed to or did not believe to be in the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Indemnified Person believed or had
reasonable cause to believe such conduct was unlawful. In no
event shall any advance be made (i) to a Company Indemnified
Person in instances where the Administrators, independent
legal counsel or the Common Security Holder reasonably
determine that such Person deliberately breached such Person's
duty to the Trust or its Common or Capital Security Holders or
(ii) to a Fiduciary Indemnified Person in instances where
independent legal counsel promptly and reasonably determines
in a written opinion that such Person deliberately breached
such Person's duty to the Trust or its Common or Capital
Security Holders.
(b) The Sponsor shall indemnify, to the fullest extent permitted by applicable law, each Indemnified Person from and against any and all loss, damage, liability, tax (other than taxes based on the income of such Indemnified Person), penalty, expense or claim of any kind or nature whatsoever incurred by such Indemnified Person arising out of or in connection with or by reason of the creation, administration or termination of the Trust, or any act or omission of such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Declaration, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage, liability, tax, penalty, expense or claim incurred by such Indemnified Person by reason of negligence, willful misconduct or bad faith with respect to such acts or omissions.
(c) The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the Sponsor or Capital Security Holders of the Trust or otherwise, both as to action in such Person's official capacity and as to action in another capacity while holding such office. All rights to indemnification under this Section shall be deemed to be provided by a contract between the Sponsor and each Indemnified Person who serves in such capacity at any time while this Section is in effect. Any repeal or modification of this Section shall not affect any rights or obligations then existing.
(d) The Sponsor or the Trust may purchase and maintain insurance on behalf of any Person who is or was an Indemnified Person against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of such Person's status as such, whether or not the Sponsor would have the power to indemnify such Person against such liability under the provisions of this Section.
(e) For purposes of this Section, references to "the Trust" shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any Person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section with respect to the resulting or surviving entity as such Person would have with respect to such constituent entity if its separate existence had continued.
(f) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section shall, unless otherwise provided when authorized or ratified, continue as to a Person who has ceased to be an Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a Person.
(g) The provisions of this Section shall survive the termination of this Declaration or the earlier resignation or removal of the Institutional Trustee. The obligations of the Sponsor under this Section to compensate and indemnify the Trustees and to pay or reimburse the Trustees for expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Trust Securities upon all property and funds held or collected by the Trustees as such, except funds held in trust for the benefit of the Holders of particular Capital Securities, PROVIDED, THAT the Sponsor is the Holder of the Common Securities.
Section 10.5. OUTSIDE BUSINESSES. Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee (subject to Section 5.3(c)) may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the Holders of Trust Securities shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. None of any Covered Person, the Sponsor, the Delaware Trustee or the Institutional Trustee shall be
obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person, the Delaware Trustee and the Institutional Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates.
Section 10.6. COMPENSATION; FEE. (a) The Sponsor agrees:
(i) to pay to the Trustees from time to time such compensation for all services rendered by them hereunder as the parties shall agree in writing from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and
(ii) except as otherwise expressly provided herein, to reimburse each of the Trustees upon request for all reasonable, documented expenses, disbursements and advances incurred or made by such Person in accordance with any provision of this Declaration (including the reasonable compensation and the expenses and disbursements of such Person's agents and counsel), except any such expense, disbursement or advance attributable to such Person's negligence, willful misconduct or bad faith.
(b) The provisions of this Section shall survive the dissolution of the Trust and the termination of this Declaration and the removal or resignation of any Trustee.
ARTICLE XI
ACCOUNTING
Section 11.1. FISCAL YEAR. The fiscal year (the "Fiscal Year") of the Trust shall be the calendar year, or such other year as is required by the Code.
Section 11.2. CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Administrators shall keep, or cause to be kept, at the principal office of the Trust in the United States, as defined for purposes of Treasury Regulations ss. 301.7701-7, full books of account, records and supporting documents, which shall reflect in reasonable detail each transaction of the Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting principles, consistently applied.
(b) The Sponsor shall cause the Administrators to deliver, by hardcopy or electronic transmission, to each Holder of Securities: (1) each Form 10-K and Form 10-Q prepared by the Sponsor and filed with the Commission in accordance with the Exchange Act, within ten Business Days after the filing thereof; (2) if the Sponsor is not then (y) subject to
Section 13 or 15(d) of the Exchange Act or (z) exempt from reporting pursuant to Rule 12g3-2(b) thereunder, the information required to be provided by Rule 144A(d)(4) under the Securities Act, the information required to be provided by Rule 144A(d)(4) under the Securities Act; and (3) within 90 days after the end of each Fiscal Year of the Trust, annual financial statements of the Trust, including a balance sheet of the Trust as of the end of such Fiscal Year and the statements of income or loss for the Fiscal Year then ended, that are prepared at the principal office of the Trust in the United States, as defined for purposes of Treasury Regulations ss. 301.7701-7.
(c) The Administrators shall cause to be duly prepared and delivered to each of the Holders of Trust Securities Form 1099 or such other annual United States federal income tax information statement required by the Code, containing such information with regard to the Trust Securities held by each Holder as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code to deliver any such statement at a later date, the Administrators shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Trust.
(d) The Administrators shall cause to be duly prepared in the United States, as defined for purposes of Treasury Regulations ss. 301.7701-7, and filed an annual United States federal income tax return on a Form 1041 or such other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Administrators on behalf of the Trust with any state or local taxing authority.
Section 11.3. BANKING. The Trust shall maintain one or more bank accounts in the United States, as defined for purposes of Treasury Regulations ss. 301.7701-7, in the name and for the sole benefit of the Trust; PROVIDED, HOWEVER, that all payments of funds in respect of the Debt Securities held by the Institutional Trustee shall be made directly to the Property Account and no other funds of the Trust shall be deposited in the Property Account. The sole signatories for such accounts (including the Property Account) shall be designated by the Institutional Trustee.
Section 11.4. WITHHOLDING. The Institutional Trustee or any Paying Agent and the Administrators shall comply with all withholding requirements under United States federal, state and local law. The Institutional Trustee or any Paying Agent shall request, and each Holder shall provide to the Institutional Trustee or any Paying Agent, such forms or certificates as are necessary to establish an exemption from withholding with respect to the Holder, and any representations and forms as shall reasonably be requested by the Institutional Trustee or any Paying Agent to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Administrators shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Institutional Trustee or any Paying Agent is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Holder, the amount withheld shall be deemed to be a Distribution to the Holder in the amount of the withholding. In the event of any claimed overwithholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Institutional Trustee or any Paying Agent may reduce subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1. AMENDMENTS. (a) Except as otherwise provided in this Declaration or by any applicable terms of the Trust Securities, this Declaration may only be amended by a written instrument approved and executed by
(i) the Institutional Trustee,
(ii) if the amendment affects the rights, powers, duties, obligations or immunities of the Delaware Trustee, the Delaware Trustee,
(iii) if the amendment affects the rights, powers, duties, obligations or immunities of the Administrators, the Administrators, and
(iv) the Holders of a Majority in Liquidation Amount of the Common Securities.
(b) Notwithstanding any other provision of this Article XII, no amendment shall be made, and any such purported amendment shall be void and ineffective:
(i) unless the Institutional Trustee shall have first received
(A) an Officers' Certificate from each of the Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the Trust Securities); and
(B) an Opinion of Counsel (who may be counsel to the Sponsor or the Trust) that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the Trust Securities) and that all conditions precedent to the execution and delivery of such amendment have been satisfied; or
(ii) if the result of such amendment would be to
(A) cause the Trust to fail to be classified for purposes of United States federal income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers of the Institutional Trustee in contravention of the Trust Indenture Act;
(C) cause the Trust to be deemed to be an Investment Company required to be registered under the Investment Company Act; or
(D) cause the Debt Security Issuer to be unable to treat an amount equal to the Liquidation Amount of the Capital Securities as "Tier 1 Capital" (or its then equivalent if the Debt Security Issuer (or its successors) were subject to such capital requirement) applied as if the Debt Security Issuer (or its successors) were a bank holding company for purposes of the capital adequacy guidelines of the Federal Reserve (or any successor regulatory authority with jurisdiction over bank holding companies), or any capital adequacy guidelines as then in effect and applicable to the Debt Security Issuer.
(c) Except as provided in Section 12.1(d), (e) or (g), no amendment shall be made, and any such purported amendment shall be void and ineffective, unless the Holders of a Majority in Liquidation Amount of the Capital Securities shall have consented to such amendment.
(d) In addition to and notwithstanding any other provision in
this Declaration, without the consent of each affected Holder, this Declaration
may not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or any redemption or liquidation provisions applicable to the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
Distributions or other amounts on or after their due date.
(e) Sections 10.1(b) and 10.1(c) and this Section shall not be amended without the consent of all of the Holders of the Trust Securities.
(f) The rights of the Holders of the Capital Securities and Common Securities, as applicable, under Article IV to increase or decrease the number of, and appoint and remove, Trustees shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Capital Securities or Common Securities, as applicable.
(g) This Declaration may be amended by the Institutional Trustee and the Holder of the Common Securities without the consent of the Holders of the Capital Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may be defective or inconsistent with any other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
(iv) modify, eliminate or add to any provision of this Declaration to such extent as may be necessary or desirable, including, without limitation, to ensure that the Trust will be classified for United States federal income tax purposes at all times as a grantor trust and will not be required to register as an Investment Company under the Investment Company Act (including without limitation to conform to any change in
Rule 3a-5, Rule 3a-7 or any other applicable rule under the Investment Company Act or written change in interpretation or application thereof by any legislative body, court, government agency or regulatory authority); or
(v) to modify eliminate or add any provisions of this Declaration to such extent as shall be necessary to enable the Trust or the Sponsor to conduct an Exchange Offer in the manner contemplated by the Registration Rights Agreement.
PROVIDED, HOWEVER, that no such amendment contemplated in clause (i), (ii),
(iii), (iv) or (v) shall adversely affect the powers, preferences, rights or
interests of Holders of Capital Securities.
Section 12.2. MEETINGS OF THE HOLDERS OF THE TRUST SECURITIES; ACTION BY WRITTEN CONSENT.
(a) Meetings of the Holders of the Trust Securities may be called at any time by the Administrators (or as provided in the terms of such Trust Securities) to consider and act on any matter on which Holders of such Trust Securities are entitled to act under the terms of this Declaration, the terms of such Trust Securities or the rules of any stock exchange on which the Capital Securities are listed or admitted for trading, if any. The Administrators shall call a meeting of the Holders of such Trust Securities if directed to do so by the Holders of not less than 10% in Liquidation Amount of such Trust Securities. Such direction shall be given by delivering to the Administrators one or more notices in a writing stating that the signing Holders of such Trust Securities wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders of Trust Securities calling a meeting shall specify in writing the Certificates held by the Holders of the Trust Securities exercising the right to call a meeting and only those Trust Securities represented by such Certificates shall be counted for purposes of determining whether the required percentage set forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Trust Securities, the following provisions shall apply to meetings of Holders of the Trust Securities:
(i) Notice of any such meeting shall be given to all the Holders of the Trust Securities having a right to vote thereat at least 7 days and not more than 60 days before the date of such meeting. Whenever a vote, consent or approval of the Holders of the Trust Securities is permitted or required under this Declaration or the rules of any stock exchange on which the Capital Securities are listed or admitted for trading, if any, such vote, consent or approval may be given at a meeting of the Holders of the Trust Securities. Any action that may be taken at a meeting of the Holders of the Trust Securities may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders of the Trust Securities owning not less than the minimum Liquidation Amount of Trust Securities that would be necessary to authorize or take such action at a meeting at which all Holders of the Trust Securities having a right to vote thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders of the Trust Securities entitled to vote who have not
consented in writing. The Administrators may specify that any written ballot submitted to the Holders of the Trust Securities for the purpose of taking any action without a meeting shall be returned to the Trust within the time specified by the Administrators.
(ii) Each Holder of a Trust Security may authorize any Person to act for it by proxy on all matters in which a Holder of Trust Securities is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Holder of the Trust Securities executing it. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Trust were a Delaware corporation and the Holders of the Trust Securities were stockholders of a Delaware corporation. Each meeting of the Holders of the Trust Securities shall be conducted by the Administrators or by such other Person that the Administrators may designate.
(iii) Unless the Statutory Trust Act, this Declaration, the terms of the Trust Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Capital Securities are then listed or admitted for trading, if any, otherwise provides, the Administrators, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Trust Securities, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders of the Trust Securities, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote; PROVIDED, HOWEVER, that each meeting shall be conducted in the United States (as that term is defined in Treasury Regulationsss.301.7701-7).
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
Section 13.1. REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE. The Trustee that acts as initial Institutional Trustee represents and warrants to the Trust and to the Sponsor at the date of this Declaration, and each Successor Institutional Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Institutional Trustee's acceptance of its appointment as Institutional Trustee, that:
(a) the Institutional Trustee is a banking corporation or national association with trust powers, duly organized, validly existing and in good standing under the laws of the State of Delaware or the United States of America, respectively, with trust power and authority
to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration;
(b) the Institutional Trustee has a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000);
(c) the Institutional Trustee is not an Affiliate of the Sponsor, nor does the Institutional Trustee offer or provide credit or credit enhancement to the Trust;
(d) the execution, delivery and performance by the Institutional Trustee of this Declaration has been duly authorized by all necessary action on the part of the Institutional Trustee, and this Declaration has been duly executed and delivered by the Institutional Trustee, and under Delaware law (excluding any securities laws) constitutes a legal, valid and binding obligation of the Institutional Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether considered in a proceeding in equity or at law);
(e) the execution, delivery and performance of this Declaration by the Institutional Trustee does not conflict with or constitute a breach of the charter or by-laws of the Institutional Trustee; and
(f) no consent, approval or authorization of, or registration with or notice to, any state or federal banking authority governing the trust powers of the Institutional Trustee is required for the execution, delivery or performance by the Institutional Trustee of this Declaration.
Section 13.2. REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE. The Trustee that acts as initial Delaware Trustee represents and warrants to the Trust and to the Sponsor at the date of this Declaration, and each Successor Delaware Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee that:
(a) if it is not a natural person, the Delaware Trustee is duly organized, validly existing and in good standing under the laws of the State of Delaware;
(b) if it is not a natural person, the execution, delivery and performance by the Delaware Trustee of this Declaration has been duly authorized by all necessary corporate action on the part of the Delaware Trustee, and this Declaration has been duly executed and delivered by the Delaware Trustee, and under Delaware law (excluding any securities laws) constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether considered in a proceeding in equity or at law);
(c) if it is not a natural person, the execution, delivery and performance of this Declaration by the Delaware Trustee does not conflict with or constitute a breach of the charter or by-laws of the Delaware Trustee;
(d) it has trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration;
(e) no consent, approval or authorization of, or registration with or notice to, any state or federal banking authority governing the trust powers of the Delaware Trustee is required for the execution, delivery or performance by the Delaware Trustee of this Declaration; and
(f) the Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural person, it is an entity which has its principal place of business in the State of Delaware and, in either case, a Person that satisfies for the Trust the requirements of ss.3807 of the Statutory Trust Act.
ARTICLE XIV
REGISTRATION RIGHTS
Section 14.1. REGISTRATION RIGHTS AGREEMENT; LIQUIDATED
DAMAGES. The Holders of the Series A Capital Securities, the Series A Debt
Securities and the Series A Guarantee are entitled to the benefits of the
Registration Rights Agreement and the Liquidated Damages Agreement. In certain
limited circumstances set forth in the Registration Rights Agreement and the
Liquidated Damages Agreement, the Debt Security Issuer shall be required to pay
Liquidated Damages with respect to the Series A Debt Securities. The Sponsor
shall promptly notify the Institutional Trustee of any time during which the
Debt Security Issuer is required to pay Liquidated Damages. Unless otherwise
stated, the term "Distribution," as used in this Declaration, includes any and
all Liquidated Damages.
ARTICLE XV
MISCELLANEOUS
Section 15.1. NOTICES. All notices provided for in this Declaration shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied (which telecopy shall be followed by notice delivered or mailed by first class mail) or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrators at the Trust's mailing address set forth below (or such other address as the Trust may give notice of to the Holders of the Trust Securities):
Dime Community Capital Trust I
c/o Dime Community Bancshares, Inc.
209 Havemeyer Street,
Brooklyn, New York 11211
Attention: Lance Bennett
Telephone: (718) 782-6200
Telecopy: (718) 782-4683;
(b) if given to the Delaware Trustee, at the mailing address set forth below (or such other address as the Delaware Trustee may give notice of to the Holders of the Trust Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopy: (302) 651-8882;
(c) if given to the Institutional Trustee, at the Institutional Trustee's mailing address set forth below (or such other address as the Institutional Trustee may give notice of to the Holders of the Trust Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopy: (302) 651-8882;
(d) if given to the Holder of the Common Securities, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Common Securities may give notice of to the Trust):
Dime Community Bancshares, Inc.
209 Havemeyer Street
Brooklyn, NY 11211
Attention: Lance Bennett
Telephone: (718) 782-6200
Telecopy: (718) 782-4683; or
(e) if given to any other Holder, at the address set forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver.
Section 15.2. GOVERNING LAW. This Declaration and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the law of the State of Delaware and all rights, obligations and remedies shall be governed by such laws
without regard to the principles of conflict of laws of the State of Delaware or any other jurisdiction that would call for the application of the law of any jurisdiction other than the State of Delaware.
Section 15.3. SUBMISSION TO JURISDICTION.
(a) Each of the parties hereto agrees that any suit, action or proceeding arising out of or based upon this Declaration, or the transactions contemplated hereby, may be instituted in any of the courts of the State of New York and the United States District Courts, in each case located in the Borough of Manhattan, City and State of New York, and further agrees to submit to the jurisdiction of any competent court in the place of its corporate domicile in respect of actions brought against it as a defendant. In addition, each such party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of such suit, action or proceeding brought in any such court and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum and irrevocably waives any right to which it may be entitled on account of its place of corporate domicile. Each such party hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or relating to this Declaration or the transactions contemplated hereby. Each such party agrees that final judgment in any proceedings brought in such a court shall be conclusive and binding upon it and may be enforced in any court to the jurisdiction of which it is subject by a suit upon such judgment.
(b) Each of the Sponsor, the Trustees, the Administrators and the Holder of the Common Securities irrevocably consents to the service of process on it in any such suit, action or proceeding by the mailing thereof by registered or certified mail, postage prepaid, to it at its address given in or pursuant to Section 15.1 hereof.
(c) To the extent permitted by law, nothing herein contained shall preclude any party from effecting service of process in any lawful manner or from bringing any suit, action or proceeding in respect of this Declaration in any other state, country or place.
Section 15.4. INTENTION OF THE PARTIES. It is the intention of the parties hereto that the Trust be classified for United States federal income tax purposes as a grantor trust. The provisions of this Declaration shall be interpreted to further this intention of the parties.
Section 15.5. HEADINGS. Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof.
Section 15.6. SUCCESSORS AND ASSIGNS. Whenever in this Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether or not so expressed.
Section 15.7. PARTIAL ENFORCEABILITY. If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.
Section 15.8. COUNTERPARTS. This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees and Administrators to any of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page.
Section 15.9. CHARACTERIZATION. Each of the Sponsor, the Trust, the Trustees, the Administrators and the Holders and beneficial owners of the Trust Securities agrees, for United States federal income tax purposes, to treat the Debt Securities as indebtedness of the Debt Security Issuer and to treat the Trust Securities as evidence of a beneficial ownership interest in the Debt Securities through a grantor trust.
IN WITNESS WHEREOF, the undersigned have caused this Declaration to be duly executed as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Mary St. Amand
-------------------------------------
Mary St. Amand
Assistant Vice President
|
WILMINGTON TRUST COMPANY,
as Institutional Trustee
By: /s/ Mary St. Amand
-------------------------------------
Mary St. Amand
Assistant Vice President
|
Dime Community Bancshares, Inc. as Sponsor
By: /s/ Michael P. Devine
-------------------------------------
Michael P. Devine
President and Chief Operating Officer
/s/ Kenneth J. Mahon
-------------------------------------
Kenneth J. Mahon
as Administrator
/s/ Michael Pucella
-------------------------------------
Michael Pucella
as Administrator
/s/ Lance Bennett
-------------------------------------
Lance Bennett
as Administrator
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ANNEX I
TERMS OF FIXED RATE, SERIES A/SERIES B
CAPITAL SECURITIES AND COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of March 19, 2004 (as amended from time to time, the "Declaration"), the designation, rights, privileges, restrictions, preferences and other terms and provisions of the Capital Securities and the Common Securities (collectively, the "Trust Securities") are set out below (each capitalized term used but not defined herein has the meaning set forth in the Declaration):
1. DESIGNATION AND NUMBER.
(a) Capital Securities. 70,000 Series A Capital Securities of Dime Community Capital Trust I (the "Trust") and 70,000 Series B Capital Securities of the Trust, each series, with an aggregate Liquidation Amount with respect to the assets of the Trust at any one time outstanding of Seventy Million Dollars ($70,000,000) and a Liquidation Amount with respect to the assets of the Trust of $1,000 per Capital Security, are hereby designated for the purposes of identification only as "Fixed Rate Capital Securities, Series A" and "Fixed Rate Capital Securities, Series B," respectively (collectively the "Capital Securities"). The Certificates evidencing the Capital Securities shall be substantially in the form of Exhibit A-1-A or Exhibit A-1-B, respectively, to the Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange or quotation system on or in which the Capital Securities are listed, traded or quoted, if any.
(b) Common Securities. 2,165 Common Securities of the Trust (the "Common Securities") will be evidenced by Definitive Common Securities substantially in the form of Exhibit A-2 to the Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice. In the absence of an Event of Default, the Common Securities will have an aggregate Liquidation Amount with respect to the assets of the Trust of Two Million One Hundred Sixty-Five Thousand Dollars ($2,165,000) and a Liquidation Amount with respect to the assets of the Trust of $1,000 per Common Security.
2. DISTRIBUTIONS.
(a) Distributions payable on each Trust Security will be payable at a fixed rate of interest equal to 7.0% (such rate, together with the rate of any applicable Liquidated Damages, is referred to herein as the "Coupon Rate"). Distributions in arrears for more than one Distribution Period will bear interest thereon, compounded quarterly, at the applicable Coupon Rate for each Distribution Period thereafter (to the extent permitted by applicable law). The term "Distributions", as used herein, includes cash Distributions, any such compounded Distributions, any Additional Amounts payable on the Debt Securities and Liquidated Damages, if any, unless otherwise stated. A Distribution is payable only to the extent that payments are made in respect of the Debt Securities held by the Institutional Trustee and to the extent the Institutional Trustee has funds legally available in the Property Account therefor. The amount of Distributions
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payable for any Distribution Period will be computed on the basis of a 360-day year consisting of twelve 30-day months.
The term "Distribution Period", as used herein, means (i) in the case of the first Distribution Period, the period from, and including, the date of original issuance of the Trust Securities to, but excluding, the initial Distribution Payment Date and (ii) thereafter, from, and including, the first day following the end of the preceding Distribution Period to, but excluding, the applicable Distribution Payment Date or, in the case of the last Distribution Period, the related date of redemption.
(b) Distributions on the Trust Securities will be cumulative, will accrue from the date of original issuance, and will be payable, subject to extension of Distribution Periods as described herein, quarterly in arrears on January 15th, April 15th, July 15th and October 15th of each year, commencing on July 15, 2004, and on any date of redemption (each, a "Distribution Payment Date"). The Debt Security Issuer has the right under the Indenture to defer payments of interest and Liquidated Damages, if any, on the Debt Securities by extending the interest payment period for up to 20 consecutive quarterly periods (each such extended interest payment period, together with all previous and future consecutive extensions thereof, is referred to herein as an "Extension Period") at any time and from time to time on the Debt Securities, subject to the conditions described below and in the Indenture. No Extension Period may end on a date other than a Distribution Payment Date or extend beyond the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be (each such term as defined herein). During any Extension Period, interest will continue to accrue on the Debt Securities, and interest on such accrued interest (such accrued interest and interest thereon referred to herein as "Deferred Interest") will accrue, at an annual rate equal to the Coupon Rate compounded quarterly from the date such Deferred Interest would have been payable were it not for the Extension Period, to the extent permitted by applicable law. At the end of any Extension Period, the Debt Security Issuer shall pay all Deferred Interest then accrued and unpaid on the Debt Securities; PROVIDED, HOWEVER, that during any Extension Period, the Debt Security Issuer may not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Debt Security Issuer's capital stock, (ii) make any payment of principal or premium or interest on or repay, repurchase or redeem any debt securities of the Debt Security Issuer that rank in all respects PARI PASSU with or junior in interest to the Debt Securities or (iii) make any payment under any guarantees of the Debt Security Issuer that rank in all respects PARI PASSU with or junior in interest to the Guarantee (other than (a) repurchases, redemptions or other acquisitions of shares of capital stock of the Debt Security Issuer (A) in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors or consultants, (B) in connection with a dividend reinvestment or stockholder stock purchase plan or (C) in connection with the issuance of capital stock of the Debt Security Issuer (or securities convertible into or exercisable for such capital stock), as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (b) as a result of any exchange or conversion of any class or series of the Debt Security Issuer's capital stock (or any capital stock of a subsidiary of the Debt Security Issuer) for any class or series of the Debt Security Issuer's capital stock or of any class or series of the Debt Security Issuer's indebtedness for any class or series of the Debt Security Issuer's capital stock, (c) the purchase of fractional interests in shares of the Debt Security Issuer's capital stock pursuant to the
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conversion or exchange provisions of such capital stock or the security being converted or exchanged, (d) any declaration of a dividend in connection with any stockholder's rights plan, or the issuance of rights, stock or other property under any stockholder's rights plan, or the redemption or repurchase of rights pursuant thereto, or (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks PARI PASSU with or junior in interest to such stock). Prior to the termination of any Extension Period, the Debt Security Issuer may further extend such Extension Period, PROVIDED, THAT no Extension Period (including all previous and further consecutive extensions that are part of such Extension Period) shall exceed 20 consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of all Deferred Interest, the Debt Security Issuer may commence a new Extension Period, subject to the requirements herein and in the Indenture. No interest or Deferred Interest (except any Additional Amounts that may be due and payable) shall be due and payable during an Extension Period, except at the end thereof, but Deferred Interest shall accrue upon each installment of interest that would otherwise have been due and payable during such Extension Period until such installment is paid.
As a consequence of any Extension Period, Distributions will be deferred. Notwithstanding any such deferral, Distributions will continue to accrue on the Trust Securities, and Distributions on such accrued Distributions will accrue, at the Coupon Rate applicable during such Extension Period, compounded quarterly, to the extent permitted by applicable law. If Distributions are deferred, the Distributions due shall be paid on the date that such Extension Period terminates to Holders of the Trust Securities as they appear on the books and records of the Trust on the regular record date immediately preceding the Distribution Payment Date on which such Extension Period terminates to the extent that the Trust has funds legally available for the payment of such Distributions in the Property Account of the Trust.
The Trust's funds available for Distributions to the Holders of the Trust Securities will be limited to payments received from the Debt Security Issuer. The payment of Distributions out of moneys held by the Trust is guaranteed by the Guarantor pursuant to the Guarantee.
(c) Distributions on the Trust Securities, other than Distributions payable on any redemption date, will be payable to the Holders thereof as they appear on the books and records of the Registrar on the relevant regular record dates. The relevant "regular record dates" shall be 15 days before the relevant Distribution Payment Dates. Distributions payable on any Trust Securities that are not punctually paid on any Distribution Payment Date, as a result of the Debt Security Issuer having failed to make a payment under the Debt Securities, as the case may be, when due (taking into account any Extension Period), will cease to be payable to the Person in whose name such Trust Securities are registered on the original relevant regular record date, and such defaulted Distributions will instead be payable to the Person in whose name such Trust Securities are registered on the regular record date preceding the Distribution Payment Date on which the related Extension Period terminates or, in the absence of an Extension Period, a special record date therefor selected by the Administrators.
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(d) In the event that there is any money or other property held by or for the Trust that is not accounted for hereunder, such property shall be distributed Pro Rata (as defined herein) among the Holders of the Trust Securities.
(e) If any Distribution Payment Date falls on a day that is not a Business Day, then Distributions payable on such Distribution Payment Date will be paid on the next succeeding Business Day, and no additional Distributions will accrue in respect of such payment on such next succeeding Business Day.
3. UPON DISSOLUTION. In the event of the voluntary or involuntary liquidation, dissolution, winding-up or termination of the Trust (each, a "Liquidation"), the Holders of the Trust Securities will be entitled to receive out of the assets of the Trust legally available for distribution to Holders of the Trust Securities, after satisfaction of liabilities to creditors of the Trust (to the extent not satisfied by the Debt Security Issuer), an amount in cash equal to the aggregate of the Liquidation Amount of $1,000 per Trust Security plus unpaid Distributions accrued thereon to the date of payment (collectively, the "Liquidation Distribution"), unless: (i) the Debt Securities have been redeemed in full in accordance with the terms thereof and of the Indenture; or (ii) the Debt Securities in an aggregate principal amount equal to the aggregate Liquidation Amount of such Trust Securities and bearing accrued and unpaid interest in an amount equal to the accrued and unpaid Distributions on such Trust Securities, after paying or making reasonable provision to pay all claims and obligations of the Trust in accordance with Section 3808(e) of the Statutory Trust Act, shall be distributed on a Pro Rata basis to the Holders of the Trust Securities in exchange for such Trust Securities.
The Sponsor, as the Holder of all of the Common Securities, has the right at any time, upon receipt by the Debt Security Issuer and the Institutional Trustee for the benefit of the Trust of (i) an opinion of nationally recognized tax counsel that Holders will not recognize any gain or loss for United States Federal income tax purposes as a result of the distribution of Debt Securities, to dissolve the Trust (including, without limitation, upon the occurrence of a Tax Event, an Investment Company Event or a Capital Treatment Event, each as defined herein) and (ii) prior approval from the Office of Thrift Supervision (the "OTS") or any such successor regulatory agency (if then required under applicable capital guidelines or policies of the OTS or any such successor regulatory agency) and, after satisfaction of liabilities to creditors of the Trust, cause the Debt Securities to be distributed to the Holders of the Trust Securities on a Pro Rata basis in accordance with the aggregate Liquidation Amount thereof.
The Trust shall dissolve on the first to occur of (i) April 14, 2039, the expiration of the term of the Trust, (ii) a Bankruptcy Event with respect to the Sponsor, the Trust or the Debt Security Issuer, (iii) (other than in connection with a merger, consolidation or similar transaction not prohibited by the Indenture, this Declaration or the Guarantee, as the case may be) the filing of a certificate of dissolution or its equivalent with respect to the Sponsor or upon the revocation of the charter of the Sponsor and the expiration of 90 days after the date of revocation without a reinstatement thereof, (iv) the distribution of all of the Debt Securities to the Holders of the Trust Securities, upon exercise of the right of the Holders of all of the outstanding Common Securities to dissolve the Trust as described above, (v) the entry of a decree of a judicial dissolution of any Holder of the Common Securities, the Sponsor, the Trust or the Debt Security Issuer, (vi) when all of the Trust Securities are then subject to redemption and the
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amounts necessary for redemption thereof shall have been paid to the Holders in accordance with the terms of the Trust Securities or (vii) before the issuance of any Trust Securities, with the consent of all of the Trustees and the Sponsor. As soon as practicable after the dissolution of the Trust and upon completion of the winding up of the Trust, the Trust shall terminate upon the filing of a certificate of cancellation with the Secretary of State of the State of Delaware.
Notwithstanding the foregoing, if a Liquidation of the Trust occurs as described in clause (i), (ii), (iii) or (v) in the immediately preceding paragraph, the Trust shall be liquidated by the Institutional Trustee of the Trust as expeditiously as such Trustee determines to be practical by distributing, after satisfaction of liabilities to creditors of the Trust (to the extent not satisfied by the Debt Security Issuer) as provided by applicable law, to the Holders of the Trust Securities, the Debt Securities on a Pro Rata basis, unless such distribution is determined by the Institutional Trustee not to be practical, in which event such Holders will be entitled to receive on a Pro Rata basis, out of the assets of the Trust legally available for distribution to the Holders of the Trust Securities, after satisfaction of liabilities to creditors of the Trust (to the extent not satisfied by the Debt Security Issuer), an amount in cash equal to the Liquidation Distribution. A Liquidation of the Trust pursuant to clause (iv) of the immediately preceding paragraph shall occur if the Institutional Trustee determines that such Liquidation is practical by distributing, after satisfaction of liabilities to creditors of the Trust (to the extent not satisfied by the Debt Security Issuer), to the Holders of the Trust Securities on a Pro Rata basis, the Debt Securities, and such distribution occurs.
If, upon any Liquidation of the Trust, the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by the Trust on the Trust Securities shall be paid to the Holders of the Trust Securities on a Pro Rata basis, except that if an Event of Default has occurred and is continuing, then the Capital Securities shall have a preference over the Common Securities with regard to such amounts.
Upon any Liquidation of the Trust involving a distribution of the Debt Securities, if at the time of such Liquidation, the Capital Securities were rated by at least one nationally-recognized statistical rating organization, the Debt Security Issuer will use its reasonable best efforts to obtain from at least one such or other rating organization a rating for the Debt Securities.
After the date for any distribution of the Debt Securities upon any Liquidation of the Trust, (i) the Trust Securities of the Trust will be deemed to be no longer outstanding, (ii) any certificates representing the Capital Securities will be deemed to represent undivided beneficial interests in such of the Debt Securities as have an aggregate principal amount equal to the aggregate Liquidation Amount of such Capital Securities and bearing accrued and unpaid interest equal to accrued and unpaid Distributions on such Capital Securities until such certificates are presented to the Debt Security Issuer or its agent for transfer or reissuance (and until such certificates are so surrendered, no payments shall be made to Holders of Trust Securities in respect of any payments due and payable under the Debt Securities) and (iii) all rights of Holders of Trust Securities shall cease, except the right of such Holders to receive Debt Securities upon surrender of certificates representing such Trust Securities.
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4. REDEMPTION AND DISTRIBUTION.
(a) The Debt Securities will mature on April 14, 2034 (the "Maturity Date") at an amount in cash equal to 100% of the principal amount thereof plus unpaid interest and Liquidated Damages, if any, accrued thereon to such date (the "Maturity Redemption Price"). The Debt Securities may be redeemed by the Debt Security Issuer, at its option, in whole or in part, on any Distribution Payment Date on or after April 15, 2009 (each, an "Optional Redemption Date"), at the Optional Redemption Price, upon not less than 30 nor more than 60 days' prior written notice to holders of such Debt Securities. In addition, upon the occurrence and continuation of a Tax Event, an Investment Company Event or a Capital Treatment Event, the Debt Securities may be redeemed by the Debt Security Issuer, at its option, in whole but not in part, at any time within 90 days following the occurrence of such Tax Event, Investment Company Event or Capital Treatment Event, as the case may be (the "Special Redemption Date"), at the Special Redemption Price, upon not less than 30 nor more than 60 days' prior written notice to holders of the Debt Securities so long as such Tax Event, Investment Company Event or Capital Treatment Event, as the case may be, is continuing. In each case, the right of the Debt Security Issuer to redeem the Debt Securities prior to maturity is subject to the Debt Security Issuer and the Trust having received prior approval from the OTS, if then required under applicable capital guidelines or policies of the OTS.
"Tax Event" means the receipt by the Debt Security Issuer and the Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of any amendment to or change (including any announced prospective change) in the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein, or as a result of any official administrative pronouncement (including any private letter ruling, technical advice memorandum, regulatory procedure, notice or announcement (an "Administrative Action")) or judicial decision interpreting or applying such laws or regulations, regardless of whether such Administrative Action or judicial decision is issued to or in connection with a proceeding involving the Debt Security Issuer or the Trust and whether or not subject to review or appeal, which amendment, clarification, change, Administrative Action or decision is enacted, promulgated or announced, in each case on or after the date of original issuance of the Initial Securities (as defined in the Indenture), there is more than an insubstantial risk that: (i) the Trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to income received or accrued on the Debt Securities; (ii) if the Debt Security Issuer is organized and existing under the laws of the United States or any state thereof or the District of Columbia interest payable by the Debt Security Issuer on the Debt Securities is not, or within 90 days of the date of such opinion, will not be, deductible by the Debt Security Issuer, in whole or in part, for United States federal income tax purposes; or (iii) the Trust is, or will be within 90 days of the date of such opinion, subject to or otherwise required to pay, or required to withhold from distributions to holders of Trust Securities, more than a de minimis amount of other taxes (including withholding taxes), duties, assessments or other governmental charges.
"Capital Treatment Event" means, the receipt by the Debt Security Issuer and the Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of any amendment to, or change in, the laws, rules or regulations of the United States or any political subdivision thereof or therein or any rules, guidelines or policies of an applicable regulatory
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agency or authority, or as the result of any official or administrative pronouncement or action or judicial decision interpreting or applying such laws, rules or regulations, which amendment or change is effective or which pronouncement, action or decision is announced on or after the date of original issuance of the Initial Securities, there is more than an insubstantial risk that the Debt Security Issuer will not, within 90 days of the date of such opinion, be entitled to treat an amount equal to the aggregate Liquidation Amount of the Capital Securities as "Tier 1 Capital" (or its then equivalent) if the Debt Security Issuer (or its successors) were subject to such capital requirement) applied as if the Company (or its successors) were a bank holding company for purposes of the capital adequacy guidelines of the Federal Reserve (or any successor regulatory authority with jurisdiction over bank holding companies), or any capital adequacy guidelines as then in effect and applicable to the Debt Security Issuer; PROVIDED, HOWEVER, that the distribution of the Debt Securities in connection with the liquidation of the Trust by the Debt Security Issuer shall not in and of itself constitute a Capital Treatment Event unless such liquidation shall have occurred in connection with a Tax Event or an Investment Company Event.
"Investment Company Event" means the receipt by the Debt Security Issuer and the Trust of an Opinion of Counsel experienced in such matters to the effect that as a result of any amendment to, or change in, the laws, rules or regulations of the United States or any political subdivision thereof or therein, or as the result of any official or administrative pronouncement or action or judicial decision interpreting or applying such laws, rules or regulations, which amendment or change is effective or which pronouncement, action or decision is announced on or after the date of original issuance of the Initial Securities, there is more than an insubstantial risk that the Trust is, or within 90 days of the date of such opinion will be, considered an Investment Company that is required to be registered under the Investment Company Act.
"Optional Redemption Price" means an amount in cash equal to 100% of the principal amount of the Debt Securities to be redeemed plus any unpaid interest and Liquidated Damages, if any, accrued thereon to but excluding the related Optional Redemption Date.
"Special Event" means any of a Tax Event, an Investment Company Event or a Capital Treatment Event, as the context requires.
"Special Redemption Price" means, with respect to the redemption of any Debt Security following a Special Event, an amount in cash equal to the percentage of the principal amount of the Debt Securities that is specified below for the Special Redemption Date plus unpaid interest and Liquidated Damages, if any, accrued thereon to but excluding the Special Redemption Date:
Special Redemption Price will be 103.5%
to but excluding April 15, 2005 and
thereafter will be as follows for the
12-month Period Beginning April 15, Percentage of Principal Amount
----------------------------------- ------------------------------
2005 102.8%
2006 102.1 %
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2007 101.4 %
2008 100.7 %
2009 and thereafter 100.0 %
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(b) Upon any repayment of the Debt Securities at maturity or in whole or in part upon redemption (other than following the distribution of the Debt Securities to the Holders of the Trust Securities), the proceeds from such repayment shall concurrently be applied to redeem Pro Rata, at a redemption price corresponding to the applicable Maturity Redemption Price, Optional Redemption Price or Special Redemption Price for the Debt Securities, as the case may be, Trust Securities having an aggregate Liquidation Amount equal to the aggregate principal amount of the Debt Securities so repaid; PROVIDED, HOWEVER, that Holders of such Trust Securities shall be given not less than 30 nor more than 60 days' prior written notice of such redemption (other than a redemption resulting from the maturity of the Debt Securities on the Maturity Date).
(c) If fewer than all the outstanding Trust Securities are to be so redeemed, the Common Securities and the Capital Securities will be redeemed Pro Rata and the Capital Securities to be redeemed will be as described in Section 4(e)(ii) below.
(d) The Trust may not redeem fewer than all the outstanding Capital Securities unless all accrued and unpaid Distributions have been paid on all Capital Securities for all Distribution Periods terminating on or before the related date of redemption.
(e) Written notice of any redemption of, or written notice of distribution of the Debt Securities in exchange for, the Trust Securities (a "Redemption/Distribution Notice") will be given by the Trust by mail to each Holder of Trust Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date of redemption or exchange thereof which, in the case of a redemption, will be the date of redemption of the Debt Securities. For purposes of the calculation of the date of redemption or exchange and the dates on which notices are given pursuant to this Section 4(e)(i), a Redemption/Distribution Notice shall be deemed to be given on the day such notice is first mailed by first-class mail, postage prepaid, to Holders of such Trust Securities. Each Redemption/Distribution Notice shall be addressed to the Holders of such Trust Securities at the address of each such Holder appearing on the books and records of the Registrar. No defect in the Redemption/Distribution Notice or in the mailing thereof with respect to any Holder shall affect the validity of the redemption or exchange proceedings with respect to any other Holder.
(f) In the event that fewer than all the outstanding Capital Securities are to be redeemed, the Capital Securities to be redeemed shall be redeemed Pro Rata from each Holder.
(g) If the Trust Securities are to be redeemed and the Trust gives a Redemption/Distribution Notice, which notice may only be issued if the Debt Securities are redeemed or repaid as set out in this Section (which notice will be irrevocable), then, PROVIDED, THAT the Institutional Trustee has a sufficient amount of cash in connection with the related redemption or maturity of the Debt Securities, the Institutional Trustee will pay the price
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payable upon redemption of the Trust Securities to the Holders of such Trust Securities by check mailed to the address of each such Holder appearing on the books and records of the Trust on the related date of redemption. If a Redemption/Distribution Notice shall have been given and funds deposited as required, then immediately prior to the close of business on the date of such deposit, Distributions will cease to accrue on the Trust Securities so subject to redemption and all rights of Holders of such Trust Securities so subject to redemption will cease, except the right of the Holders of such Trust Securities to receive the applicable price specified in Section 4(a), but without interest on such price. If any date of redemption of the Trust Securities falls on a day that is not a Business Day, then payment of all amounts payable on such date will be made on the next succeeding Business Day, and no additional Distributions will accrue in respect of such payment on such next succeeding Business Day. If any amount payable upon redemption of the Trust Securities is improperly withheld or refused and not paid either by the Trust, the Debt Security Issuer or the Sponsor as guarantor pursuant to the Guarantee, Distributions on such Trust Securities will continue to accrue at the Coupon Rate applicable from the date of redemption to the actual date of payment, in which case the actual payment date will be considered the date of redemption for purposes of calculating the price payable upon redemption of the Trust Securities. In the event of any redemption of the Capital Securities issued by the Trust in part, the Trust shall not be required to (i) issue, register the transfer of or exchange any Trust Security during a period beginning at the opening of business 15 days before any selection for redemption of the Capital Securities and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of the Capital Securities to be so redeemed or (ii) register the transfer of or exchange any Capital Securities so selected for redemption, in whole or in part, except for the unredeemed portion of any Capital Securities being redeemed in part.
(h) Redemption/Distribution Notices shall be sent by the Administrators on behalf of the Trust (A) in respect of the Capital Securities, to the Holders thereof, and (B) in respect of the Common Securities, to the Holder thereof.
(i) Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws), and provided, that the acquiror is not the Holder of the Common Securities or the obligor under the Indenture, the Sponsor or any of its subsidiaries may at any time and from time to time purchase outstanding Capital Securities by tender, in the open market or by private agreement.
5. VOTING RIGHTS - CAPITAL SECURITIES. (a) Except as provided under Sections 5(b) and 7 and as otherwise required by law and the Declaration, the Holders of the Capital Securities will have no voting rights. The Administrators are required to call a meeting of the Holders of the Capital Securities if directed to do so by Holders of not less than 10% in Liquidation Amount of the Capital Securities.
(b) Subject to the requirements of obtaining a tax opinion by the Institutional Trustee in certain circumstances set forth in the last sentence of this paragraph, the Holders of a Majority in Liquidation Amount of the Capital Securities, voting separately as a class, have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Institutional Trustee, or exercising any trust or power conferred upon the Institutional Trustee under the Declaration, including (i) directing the time, method, place of
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conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee with respect to the Debt Securities, (ii) waiving any past default and its consequences that are waivable under the Indenture, (iii) exercising any right to rescind or annul an acceleration of the principal of all the Debt Securities or (iv) consenting on behalf of all the Holders of the Capital Securities to any amendment, modification or termination of the Indenture or the Debt Securities where such consent shall be required; PROVIDED, HOWEVER, that, where a consent or action under the Indenture would require the consent or act of the holders of greater than a simple majority in principal amount of Debt Securities (a "Super Majority") affected thereby, the Institutional Trustee may only give such consent or take such action at the written direction of the Holders of not less than the proportion in Liquidation Amount of the Capital Securities outstanding which the relevant Super Majority represents of the aggregate principal amount of the Debt Securities outstanding. If the Institutional Trustee fails to enforce its rights under the Debt Securities after the Holders of a Majority or Super Majority, as the case may be, in Liquidation Amount of such Capital Securities have so directed the Institutional Trustee, to the fullest extent permitted by law, a Holder of the Capital Securities may institute a legal proceeding directly against the Debt Security Issuer to enforce the Institutional Trustee's rights under the Debt Securities without first instituting any legal proceeding against the Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Debt Security Issuer to pay interest, or premium, if any, or Liquidated Damages, if any, on or principal of the Debt Securities on the date such interest, Liquidated Damages, if any, premium, if any, or principal is payable (or in the case of redemption, the date of redemption), then a Holder of the Capital Securities may directly institute a proceeding for enforcement of payment, on or after the respective due dates specified in the Debt Securities, to such Holder directly of the principal of and premium, if any, and Liquidated Damages, if any, and interest on the Debt Securities having an aggregate principal amount equal to the aggregate Liquidation Amount of the Capital Securities of such Holder. The Institutional Trustee shall notify all Holders of the Capital Securities of any default actually known to the Institutional Trustee with respect to the Debt Securities unless (x) such default has been cured prior to the giving of such notice or (y) the Institutional Trustee determines in good faith that the withholding of such notice is in the interest of the Holders of such Capital Securities, except where the default relates to the payment of principal of or interest on any of the Debt Securities. Such notice shall state that such Indenture Event of Default also constitutes an Event of Default hereunder. The Institutional Trustee shall not take any of the actions described in clause (i), (ii), (iii) or (iv) above unless the Institutional Trustee has obtained an opinion of tax counsel to the effect that, as a result of such action, the Trust will not be classified as other than a grantor trust for United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of the corresponding Event of Default hereunder. Any required approval or direction of Holders of the Capital Securities may be given at a separate meeting of Holders of the Capital Securities convened for such purpose, at a meeting of all of the Holders of the Trust Securities in the Trust or pursuant to written consent. The Institutional Trustee will cause a notice of any meeting at which Holders of the Capital Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of the Capital Securities. Each such notice will include a statement setting forth the following information (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any
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resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents. No vote or consent
of the Holders of the Capital Securities will be required for the Trust to
redeem and cancel Capital Securities or to distribute the Debt Securities in
accordance with the Declaration and the terms of the Trust Securities.
Notwithstanding that Holders of the Capital Securities are entitled to vote or consent under any of the circumstances described above, any of the Capital Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall not entitle the Holder thereof to vote or consent and shall, for purposes of such vote or consent, be treated as if such Capital Securities were not outstanding.
In no event will Holders of the Capital Securities have the right to vote to appoint, remove or replace the Administrators, which voting rights are vested exclusively in the Sponsor as the Holder of all of the Common Securities of the Trust. Under certain circumstances as more fully described in the Declaration, Holders of Capital Securities have the right to vote to appoint, remove or replace the Institutional Trustee and the Delaware Trustee.
6. VOTING RIGHTS - COMMON SECURITIES. (a) Except as provided under Sections 6(b), 6(c) and 7 and as otherwise required by law and the Declaration, the Common Securities will have no voting rights.
(b) The Holder of the Common Securities is entitled, in accordance with Article IV of the Declaration, to vote to appoint, remove or replace any Administrators.
(c) Subject to Section 6.7 of the Declaration and only after
each Event of Default (if any) with respect to the Capital Securities has been
cured, waived or otherwise eliminated and subject to the requirements of the
second to last sentence of this paragraph, the Holder of the Common Securities,
voting separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional Trustee under
the Declaration, including (i) directing the time, method, place of conducting
any proceeding for any remedy available to the Indenture Trustee, or exercising
any trust or power conferred on the Indenture Trustee with respect to the Debt
Securities, (ii) waiving any past default and its consequences that are waivable
under the Indenture, or (iii) exercising any right to rescind or annul an
acceleration of the principal of all the Debt Securities. Notwithstanding this
Section 6(c), the Institutional Trustee shall not revoke any action previously
authorized or approved by a vote or consent of the Holders of the Capital
Securities. Other than with respect to directing the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee
or the Indenture Trustee as set forth above, the Institutional Trustee shall not
take any action described in clause (i), (ii) or (iii) above, unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust on account of such action. If the
Institutional Trustee fails to enforce its rights under the Declaration, to the
fullest extent permitted by law, the Holder of the Common Securities may
institute a legal proceeding directly against any Person to enforce the
Institutional Trustee's rights under the Declaration, without first instituting
a legal proceeding against the Institutional Trustee or any other Person.
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Any approval or direction of the Holder of the Common
Securities may be given at a separate meeting of Holders of the Common
Securities convened for such purpose, at a meeting of all of the Holders of the
Trust Securities in the Trust or pursuant to written consent. The Administrators
will cause a notice of any meeting at which the Holder of the Common Securities
is entitled to vote, or of any matter upon which action by written consent of
such Holder is to be taken, to be mailed to the Holder of the Common Securities.
Each such notice will include a statement setting forth (i) the date of such
meeting or the date by which such action is to be taken, (ii) a description of
any resolution proposed for adoption at such meeting on which such Holder is
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holder of the Common Securities will be required for the Trust to redeem and cancel Common Securities or to distribute the Debt Securities in accordance with the Declaration and the terms of the Trust Securities.
7. AMENDMENTS TO DECLARATION AND INDENTURE. In addition to any requirements under Section 12.1 of the Declaration, if any proposed amendment to the Declaration provides for, or the Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Trust Securities, whether by way of amendment to the Declaration or otherwise, (ii) the Liquidation of the Trust, other than as described in Section 8.1 of the Declaration, or (iii) modify, eliminate or add any provisions of the Declaration to such extent as shall be necessary to enable the Trust or the Sponsor to conduct an Exchange Offer in the manner contemplated by the Registration Rights Agreement, then the Holders of outstanding Trust Securities, voting together as a single class, will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of the Holders of a Majority in Liquidation Amount of the Trust Securities affected thereby; PROVIDED, HOWEVER, if any amendment or proposal referred to in clause (i) above would adversely affect only the Capital Securities or only the Common Securities, then only Holders of the affected Trust Securities will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of the Holders of a Majority in Liquidation Amount of such Trust Securities.
(a) In the event the consent of the Institutional Trustee, as the holder of the Debt Securities, is required under the Indenture with respect to any amendment, modification or termination of the Indenture or the Debt Securities, the Institutional Trustee shall request the written direction of the Holders of the Trust Securities with respect to such amendment, modification or termination and shall vote with respect to such amendment, modification, or termination as directed by a Majority in Liquidation Amount of the Trust Securities voting together as a single class; PROVIDED, HOWEVER, that where a consent under the Indenture would require a Super Majority, the Institutional Trustee may only give such consent at the written direction of the Holders of not less than the proportion in Liquidation Amount of the Trust Securities which the relevant Super Majority represents of the aggregate principal amount of the Debt Securities outstanding.
(b) Notwithstanding the foregoing, no amendment or modification may be made to the Declaration if such amendment or modification would (i) cause the Trust to fail to be classified for purposes of United States federal income taxation as a grantor trust, (ii) reduce
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or otherwise adversely affect the powers of the Institutional Trustee or (iii) cause the Trust to be deemed an Investment Company which is required to be registered under the Investment Company Act.
(c) Notwithstanding any provision of the Declaration, the right of any Holder of the Capital Securities to receive payment of Distributions and payments upon redemption, Liquidation or otherwise, on or after their respective due dates, or to institute a suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. For the protection and enforcement of the foregoing provision, each and every Holder of the Capital Securities shall be entitled to such relief as can be given either at law or equity.
8. PRO RATA. A reference in these terms of the Trust Securities to any payment, distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder of the Trust Securities according to the aggregate Liquidation Amount of the Trust Securities held by the relevant Holder in relation to the aggregate Liquidation Amount of all Trust Securities outstanding unless, in relation to a payment, an Event of Default has occurred and is continuing, in which case any funds available to make such payment shall be paid first to each Holder of the Capital Securities Pro Rata according to the aggregate Liquidation Amount of the Capital Securities held by the relevant Holder relative to the aggregate Liquidation Amount of all Capital Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Capital Securities, to each Holder of the Common Securities Pro Rata according to the aggregate Liquidation Amount of the Common Securities held by the relevant Holder relative to the aggregate Liquidation Amount of all Common Securities outstanding.
9. RANKING. The Capital Securities rank PARI PASSU with, and payment thereon shall be made Pro Rata with, the Common Securities except that, where an Event of Default has occurred and is continuing, the rights of Holders of the Common Securities to receive payment of Distributions and payments upon Liquidation, redemption and otherwise are subordinated to the rights of the Holders of the Capital Securities with the result that no payment of any Distribution on, or any amount payable upon the redemption of, any Common Security, and no payment to the Holder of any Common Security on account of the Liquidation of the Trust, shall be made unless payment in full in cash of (i) all accrued and unpaid Distributions on all outstanding Capital Securities for all Distribution Periods terminating on or prior thereto, (ii) all amounts payable upon Capital Securities then subject to redemption and (iii) all amounts payable upon Capital Securities in the event of the Liquidation of the Trust, in each case, shall have been made or provided for, and all funds immediately available to the Institutional Trustee shall first be applied to the payment in full in cash of the amounts specified in clause (i), (ii) and (iii) above that are then due and payable.
10. ACCEPTANCE OF GUARANTEE AND INDENTURE. Each Holder of the Capital Securities and the Common Securities, by the acceptance of such Trust Securities, agrees to the provisions of the Guarantee and the Indenture, including the subordination provisions therein.
11. NO PREEMPTIVE RIGHTS. The Holders of the Trust Securities shall have no, and the issuance of the Trust Securities is not subject to, preemptive or similar rights to subscribe for any additional securities.
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12. MISCELLANEOUS. These terms constitute a part of the Declaration. The Sponsor will provide a copy of the Declaration, the Guarantee and the Indenture to a Holder without charge on written request to the Sponsor at its principal place of business.
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EXHIBIT A-1-A
FORM OF SERIES A CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF CAPITAL SECURITY]
[IF THIS SERIES A CAPITAL SECURITY IS A GLOBAL CAPITAL
SECURITY, INSERT: THIS SERIES A CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING OF THE DECLARATION (AS DEFINED BELOW) AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING AGENCY. THIS SERIES A CAPITAL SECURITY IS EXCHANGEABLE FOR SERIES A CAPITAL SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS SERIES A CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL SECURITY AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SERIES A CAPITAL SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SERIES A CAPITAL SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO.,
HAS AN INTEREST HEREIN.]
THIS SERIES A CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS SERIES A CAPITAL SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SERIES A CAPITAL SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SERIES A CAPITAL SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN PRIOR TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF (Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE ON WHICH THE TRUST OR ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER
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THE SECURITIES ACT) OF THE TRUST WAS THE HOLDER OF THIS SERIES A CAPITAL SECURITY OR SUCH INTEREST OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) TO THE DEBT SECURITY ISSUER OR THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER," AS DEFINED IN RULE 144A, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7) OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SERIES A CAPITAL SECURITY OR SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE DEBT SECURITY ISSUER AND THE TRUST PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (F) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION (AS DEFINED BELOW), A COPY OF WHICH MAY BE OBTAINED FROM THE DEBT SECURITY ISSUER OR THE TRUST. THE HOLDER OF THIS SERIES A CAPITAL SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
THE HOLDER OF THIS SERIES A CAPITAL SECURITY OR ANY INTEREST
OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY
BE, ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON
OF ANY PLAN'S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF
ANY PLAN MAY ACQUIRE OR HOLD THIS SERIES A CAPITAL SECURITY OR ANY INTEREST OR
PARTICIPATION HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
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EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SERIES A CAPITAL SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SERIES A CAPITAL SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR THEREOF, AS THE CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SERIES A CAPITAL SECURITY WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE DECLARATION (AS DEFINED BELOW) TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS SERIES A CAPITAL SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SERIES A CAPITAL SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SERIES A CAPITAL SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SERIES A CAPITAL SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SERIES A CAPITAL SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN.
THE HOLDER OF THIS SERIES A CAPITAL SECURITY OR ANY INTEREST HEREIN BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY BOTH THE REGISTRATION RIGHTS AGREEMENT AND THE LIQUIDATED DAMAGES AGREEMENT DATED AS OF MARCH 12, 2004, BY AND AMONG THE TRUST, THE SPONSOR AND THE INITIAL PURCHASER NAMED THEREIN, AS AMENDED FROM TIME TO TIME.
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Certificate Number [_____] Number of Capital Securities [_____]
CUSIP NO [________]
Certificate Evidencing Capital Securities
of
Dime Community Capital Trust I
Fixed Rate Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
Dime Community Capital Trust I, a statutory trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
[Cede & Co.]/1 [_________]/2 [HOLDER OF CAPITAL SECURITIES] is the registered
owner (the "Holder") of [NUMBER OF CAPITAL SECURITIES] capital securities,
series A, of the Trust representing undivided preferred beneficial interests in
the assets of the Trust, designated as the Fixed Rate Capital Securities, Series
A (Liquidation Amount $1,000 per Capital Security) (the "Capital Securities").
Subject to the Declaration (as defined below), the Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this Certificate duly endorsed and in
proper form for transfer. The Capital Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities shall in all respects
be subject to, the provisions of the Amended and Restated Declaration of Trust
of the Trust, dated as of March 19, 2004, among Kenneth J. Mahan, Michael
Pucella and Lance Bennett, as Administrators, Wilmington Trust Company, as
Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, Dime
Community Bancshares, Inc., as Sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Trust, including the
designation of the terms of the Capital Securities as set forth in Annex I to
the Declaration, as the same may be amended from time to time (the
"Declaration"). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Guarantee and the Indenture to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Guarantee, and the Indenture to the
Holder without charge upon written request to the Sponsor at its principal place
of business.
By acceptance of this Certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder.
By acceptance of this Certificate, the Holder agrees to treat, for United States federal income tax purposes, the Debt Securities as indebtedness and the Capital Securities as evidence of undivided beneficial ownership in the Debt Securities through a grantor trust.
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This Certificate and the Capital Securities evidenced hereby are governed by, and shall be construed in accordance with, the laws of the State of Delaware, without regard to principles of conflict of laws.
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IN WITNESS WHEREOF, the Trust has duly executed this Certificate.
Dime Community Capital Trust I
By:________________________________
Name:
Title: Administrator
Dated: ___________________________
CERTIFICATE OF AUTHENTICATION
This Certificate represents Fixed Rate Capital Securities, Series A referred to in the within-mentioned Declaration.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as the Institutional Trustee
By:_______________________________
Authorized Officer
Dated: ___________________________
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[FORM OF REVERSE OF CAPITAL SECURITY]
Distributions payable on each Capital Security will be payable at a fixed rate of interest per annum, which, with respect to any Distribution Period (as defined herein), will be equal to 7.0% (such rate, together with the rate of any applicable Liquidated Damages (as defined in the Registration Rights Agreement and Liquidated Damages Agreement) is referred to herein as the "Coupon Rate"). Distributions in arrears for more than one Distribution Period will bear interest thereon, compounded quarterly, at the applicable Coupon Rate for each Distribution Period thereafter (to the extent permitted by applicable law). The term "Distributions", as used herein, includes cash Distributions, any such compounded Distributions and any Additional Amounts payable on the Debt Securities and Liquidated Damages, if any, unless otherwise stated. A Distribution is payable only to the extent that payments are made in respect of the Debt Securities held by the Institutional Trustee and to the extent the Institutional Trustee has funds legally available in the Property Account therefor. The amount of Distributions payable for any Distribution Period will be computed on the basis of a 360-day year consisting of twelve 30-day months.
Except as otherwise described below, Distributions on the Capital Securities will be cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears on January 15th, April 15th, July 15th and October 15th of each year, commencing on July 15, 2004, and on any date of redemption (each, a "Distribution Payment Date"), subject to the Business Day convention specified in the Declaration. The Debt Security Issuer has the right under the Indenture to defer payments of interest and Liquidated Damages, if any, on the Debt Securities by extending the interest payment period for up to 20 consecutive quarterly periods (each such extended interest payment period, together with all previous and future consecutive extensions thereof, is referred to herein as an "Extension Period") at any time and from time to time on the Debt Securities, subject to the conditions described below and in the Declaration and the Indenture. No Extension Period may end on a date other than a Distribution Payment Date or extend beyond the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be. During any Extension Period, interest will continue to accrue on the Debt Securities, and interest on such accrued interest (such accrued interest and interest thereon referred to herein as "Deferred Interest") will accrue, at an annual rate equal to the Coupon Rate, compounded quarterly from the date such Deferred Interest would have been payable were it not for the Extension Period, to the extent permitted by applicable law. At the end of any Extension Period, the Debt Security Issuer shall pay all Deferred Interest then accrued and unpaid on the Debt Securities; PROVIDED, HOWEVER, that prior to the termination of any Extension Period, the Debt Security Issuer may further extend such Extension Period, PROVIDED, THAT no Extension Period (including all previous and further consecutive extensions that are part of such Extension Period) shall exceed 20 consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of all Deferred Interest, the Debt Security Issuer may commence a new Extension Period, subject to the requirements set forth herein and in the Declaration and the Indenture. No interest or Deferred Interest (except any Additional Amounts that may be due and payable) shall be due and payable during an Extension Period, except at the end thereof, but Deferred Interest shall accrue upon each installment of interest that would otherwise have been due and payable during such Extension Period until such installment is paid.
A-1-A-7
As a consequence of any Extension Period, Distributions will be deferred. If Distributions are deferred, the Distributions due shall be paid on the date that the related Extension Period terminates to Holders of the Capital Securities as they appear on the books and records of the Trust on the regular record date immediately preceding the Distribution Payment Date on which such Extension Period terminates to the extent that the Trust has funds legally available for the payment of such Distributions in the Property Account of the Trust.
The Capital Securities shall be redeemable, and shall be entitled to the Liquidation Distribution, as provided in the Declaration.
A-1-A-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers the Capital Securities evidenced by this Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee),
and irrevocably appoints _______________________________________________________ as agent to transfer the Capital Securities evidenced by this Certificate on the books of the Trust. The agent may substitute another to act for it, him or her.
Date:__________________
Signature:__________________
(Sign exactly as your name appears on the other side of this Certificate)
Signature Guarantee:/1 ____________________________
1 Signature must be guaranteed by an "eligible guarantor institution" that is a bank, stockbroker, savings and loan association or credit union, meeting the requirements of the Security registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Security registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-1-A-9
EXHIBIT A-1-B
FORM OF SERIES B CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF CAPITAL SECURITY]
[IF THIS SERIES B CAPITAL SECURITY IS A GLOBAL CAPITAL
SECURITY, INSERT: THIS SERIES B CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING OF THE DECLARATION (AS DEFINED BELOW) AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING AGENCY. THIS SERIES B CAPITAL SECURITY IS EXCHANGEABLE FOR SERIES B CAPITAL SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS SERIES B CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS SERIES B CAPITAL SECURITY AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SERIES B CAPITAL SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SERIES B CAPITAL SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO.,
HAS AN INTEREST HEREIN.]
THE HOLDER OF THIS SERIES B CAPITAL SECURITY OR ANY INTEREST
OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY
BE, ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON
OF ANY PLAN'S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF
ANY PLAN MAY ACQUIRE OR HOLD THIS SERIES B CAPITAL SECURITY OR ANY INTEREST OR
PARTICIPATION HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SERIES B CAPITAL
A-1-B-1
SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SERIES B CAPITAL SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR THEREOF, AS THE CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SERIES B CAPITAL SECURITY WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE DECLARATION (AS DEFINED BELOW) TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS SERIES B CAPITAL SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SERIES B CAPITAL SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SERIES B CAPITAL SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SERIES B CAPITAL SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SERIES B CAPITAL SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN.
A-1-B-2
Certificate Number [_____] Number of Capital Securities [_____]
CUSIP NO [________]
Certificate Evidencing Exchange Capital Securities
of
Dime Community Capital Trust I
Fixed Rate Capital Securities, Series B
(Liquidation Amount $1,000 per Capital Security)
Dime Community Capital Trust I, a statutory trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
[Cede & Co.]3 [_________]4 is the registered owner (the "Holder") of
[______________] capital securities, series B, of the Trust representing
undivided preferred beneficial interests in the assets of the Trust, designated
as the Fixed Rate Capital Securities, Series B (Liquidation Amount $1,000 per
Capital Security) (the "Exchange Capital Securities"). Subject to the
Declaration (as defined below), the Exchange Capital Securities are transferable
on the books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this Certificate duly endorsed and in proper form
for transfer. The Exchange Capital Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Exchange Capital Securities shall in all
respects be subject to, the provisions of the Amended and Restated Declaration
of Trust of the Trust, dated as of March 19, 2004, among Kenneth J. Mahan,
Michael Pucella and Lance Bennett, as Administrators, Wilmington Trust Company,
as Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, Dime
Community Bancshares, Inc., as Sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Trust, including the
designation of the terms of the Exchange Capital Securities as set forth in
Annex I to the Declaration, as the same may be amended from time to time (the
"Declaration"). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Guarantee and the Indenture to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Guarantee, and the Indenture to the
Holder without charge upon written request to the Sponsor at its principal place
of business.
By acceptance of this Certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder.
By acceptance of this Certificate, the Holder agrees to treat, for United States federal income tax purposes, the Debt Securities as indebtedness and the Exchange Capital Securities as evidence of undivided beneficial ownership in the Debt Securities through a grantor trust.
A-1-B-3
This Certificate and the Exchange Capital Securities evidenced hereby are governed by, and shall be construed in accordance with, the laws of the State of Delaware, without regard to principles of conflict of laws.
A-1-B-4
IN WITNESS WHEREOF, the Trust has duly executed this Certificate.
Dime Community Capital Trust I
By:________________________________
Name:
Title: Administrator
Dated: ___________________________
CERTIFICATE OF AUTHENTICATION
This Certificate represents Fixed Rate Capital Securities, Series B referred to in the within-mentioned Declaration.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as the Institutional Trustee
By:_______________________________
Authorized Officer
Dated: ___________________________
A-1-B-5
[FORM OF REVERSE OF CAPITAL SECURITY]
Distributions payable on each Exchange Capital Security will be payable at a fixed rate of interest per annum, which, with respect to any Distribution Period (as defined herein), will be equal to 7.0% (the "Coupon Rate"). Distributions in arrears for more than one Distribution Period will bear interest thereon, compounded quarterly, at the applicable Coupon Rate for each Distribution Period thereafter (to the extent permitted by applicable law). The term "Distributions", as used herein, includes cash Distributions, any such compounded Distributions and any Additional Amounts payable on the Debt Securities unless otherwise stated. A Distribution is payable only to the extent that payments are made in respect of the Debt Securities held by the Institutional Trustee and to the extent the Institutional Trustee has funds legally available in the Property Account therefor. The amount of Distributions payable for any Distribution Period will be computed on the basis of a 360-day year consisting of twelve 30-day months.
Except as otherwise described below, Distributions on the Exchange Capital Securities will be cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears on January 15th, April 15th, July 15th and October 15th of each year, commencing on July 15, 2004, and on any date of redemption (each, a "Distribution Payment Date"), subject to the Business Day convention specified in the Declaration. The Debt Security Issuer has the right under the Indenture to defer payments of interest and Liquidated Damages, if any, on the Debt Securities by extending the interest payment period for up to 20 consecutive quarterly periods (each such extended interest payment period, together with all previous and future consecutive extensions thereof, is referred to herein as an "Extension Period") at any time and from time to time on the Debt Securities, subject to the conditions described below and in the Declaration and the Indenture. No Extension Period may end on a date other than a Distribution Payment Date or extend beyond the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be. During any Extension Period, interest will continue to accrue on the Debt Securities, and interest on such accrued interest (such accrued interest and interest thereon referred to herein as "Deferred Interest") will accrue, at an annual rate equal to the Coupon Rate, compounded quarterly from the date such Deferred Interest would have been payable were it not for the Extension Period, to the extent permitted by applicable law. At the end of any Extension Period, the Debt Security Issuer shall pay all Deferred Interest then accrued and unpaid on the Debt Securities; PROVIDED, HOWEVER, that prior to the termination of any Extension Period, the Debt Security Issuer may further extend such Extension Period, PROVIDED, THAT no Extension Period (including all previous and further consecutive extensions that are part of such Extension Period) shall exceed 20 consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of all Deferred Interest, the Debt Security Issuer may commence a new Extension Period, subject to the requirements set forth herein and in the Declaration and the Indenture. No interest or Deferred Interest (except any Additional Amounts that may be due and payable) shall be due and payable during an Extension Period, except at the end thereof, but Deferred Interest shall accrue upon each installment of interest that would otherwise have been due and payable during such Extension Period until such installment is paid.
As a consequence of any Extension Period, Distributions will be deferred. If Distributions are deferred, the Distributions due shall be paid on the date that the related
A-1-B-6
Extension Period terminates to Holders of the Exchange Capital Securities as they appear on the books and records of the Trust on the regular record date immediately preceding the Distribution Payment Date on which such Extension Period terminates to the extent that the Trust has funds legally available for the payment of such Distributions in the Property Account of the Trust.
The Exchange Capital Securities shall be redeemable as provided in the Declaration.
A-1-B-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers the Capital Securities evidenced by this Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee),
and irrevocably appoints _______________________________________________________ as agent to transfer the Capital Securities evidenced by this Certificate on the books of the Trust. The agent may substitute another to act for it, him or her.
Date:__________________
Signature:__________________
(Sign exactly as your name appears on the other side of this Certificate)
Signature Guarantee:/1 ____________________________
A-1-B-8
EXHIBIT A-2
FORM OF COMMON SECURITY
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION.
EXCEPT AS SET FORTH IN SECTION 9.1(b) OF THE DECLARATION (AS DEFINED BELOW), THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.
A-2-1
Certificate Number [_____] Number of Common Securities [____]
Certificate Evidencing Common Securities
of
Dime Community Capital Trust I
Fixed Rate Common Securities
(Liquidation Amount $1,000 per Common Security)
Dime Community Capital Trust I, a statutory trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
[____________________] is the registered owner (the "Holder") of common
securities of the Trust representing undivided common beneficial interests in
the assets of the Trust (Liquidation Amount $1,000 per Common Security)(the
"Common Securities"). The Common Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities shall in all respects be
subject to, the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of March 19, 2004, among Kenneth J. Mahon, Michael Pucella
and Lance Bennett, as Administrators, Wilmington Trust Company, as Delaware
Trustee, Wilmington Trust Company, as Institutional Trustee, the Holder, as
Sponsor, and the holders from time to time of undivided beneficial interests in
the assets of the Trust, including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration, as the same may be
amended from time to time (the "Declaration"). Capitalized terms used herein but
not defined shall have the meaning given them in the Declaration. The Sponsor
will provide a copy of the Declaration and the Indenture to the Holder without
charge upon written request to the Sponsor at its principal place of business.
As set forth in the Declaration, when an Event of Default has occurred and is continuing, the rights of the Holder of Common Securities to payment in respect of Distributions and payments upon Liquidation, redemption or otherwise are subordinated to the rights of payment of holders of the Capital Securities.
By acceptance of this Certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder.
By acceptance of this Certificate, the Holder agrees to treat, for United States federal income tax purposes, the Debt Securities as indebtedness and the Common Securities as evidence of undivided beneficial ownership in the Debt Securities through a grantor trust.
This Certificate and the Common Securities evidenced hereby are governed by, and shall be construed in accordance with, the laws of the State of Delaware, without regard to principles of conflict of laws.
A-2-2
IN WITNESS WHEREOF, the Trust has executed this Certificate this ___ day of ____, 2004.
Dime Community Capital Trust I
By:______________________________
Name:
Title: Administrator
A-2-3
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be identical in amount to the Distributions payable on each Capital Security, which is at a fixed rate of interest per annum, which, with respect to any Distribution Period (as defined herein) (such rate, together with the rate of any applicable Liquidated Damages (as defined in the Registration Rights Agreement), is referred to herein as the "Coupon Rate"). Distributions in arrears for more than one Distribution Period will bear interest thereon, compounded quarterly, at the applicable Coupon Rate for each Distribution Period thereafter (to the extent permitted by applicable law). The term "Distributions", as used herein, includes cash Distributions, any such compounded Distributions and any Additional Amounts payable on the Debt Securities and Liquidated Damages, if any, unless otherwise stated. A Distribution is payable only to the extent that payments are made in respect of the Debt Securities held by the Institutional Trustee and to the extent the Institutional Trustee has funds legally available in the Property Account therefor. The amount of Distributions payable for any Distribution Period will be computed on the basis of a 360-day year consisting of twelve 30 day months.
Except as otherwise described below, Distributions on the Common Securities will be cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears on January 15th, April 15th, July 15th and October 15th of each year, commencing on July 15, 2004, and on any date of redemption (each, a "Distribution Payment Date"), subject to the Business Day convention specified in the Declaration. The Debt Security Issuer has the right under the Indenture to defer payments of interest on the Debt Securities by extending the interest payment period for up to 20 consecutive quarterly periods (each such extended interest payment period, together with all previous and future consecutive extensions thereof, is referred to herein as an "Extension Period") at any time and from time to time on the Debt Securities, subject to the conditions described below and in the Declaration and the Indenture. No Extension Period may end on a date other than a Distribution Payment Date or extend beyond the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be. During any Extension Period, interest will continue to accrue on the Debt Securities, and interest on such accrued interest (such accrued interest and interest thereon referred to herein as "Deferred Interest") will accrue, at an annual rate equal to the Coupon Rate, compounded quarterly from the date such Deferred Interest would have been payable were it not for the Extension Period, to the extent permitted by applicable law. At the end of any Extension Period, the Debt Security Issuer shall pay all Deferred Interest then accrued and unpaid on the Debt Securities; PROVIDED, HOWEVER, that prior to the termination of any Extension Period, the Debt Security Issuer may further extend such Extension Period, PROVIDED, THAT no Extension Period (including all previous and further consecutive extensions that are part of such Extension Period) shall exceed 20 consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of all Deferred Interest, the Debt Security Issuer may commence a new Extension Period, subject to the requirements set forth herein and in the Declaration and the Indenture. No interest or Deferred Interest (except any Additional Amounts that may be due and payable) shall be due and payable during an Extension Period, except at the end thereof, but Deferred Interest shall accrue upon each installment of interest that would otherwise have been due and payable during such Extension Period until such installment is paid.
A-2-4
As a consequence of any Extension Period, Distributions will be deferred. If Distributions are deferred, the Distributions due shall be paid on the date that the related Extension Period terminates to Holders of the Trust Securities as they appear on the books and records of the Trust on the regular record date immediately preceding the Distribution Payment Date on which such Extension Period terminates to the extent that the Trust has funds legally available for the payment of such Distributions in the Property Account of the Trust.
The Common Securities shall be redeemable, and shall be entitled to the Liquidation Distribution, as provided in the Declaration.
A-2-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Securities evidenced by this Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee),
and irrevocably appoints ___________ as agent to transfer the Common Securities evidenced by this Certificate on the books of the Trust. The agent may substitute another to act for him or her.
Date:____________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Certificate)
Signature Guarantee:/1 ________________________
A-2-6
EXHIBIT B
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED BY ACCREDITED INVESTORS
_________________, [ ]
Dime Community Bancshares, Inc.
Dime Community Capital Trust I
209 Havemeyer Street
Brooklyn, New York 11211
Ladies and Gentlemen:
In connection with our purchase of the Capital Securities, we confirm that:
1. We understand that the Capital Securities of the Trust have
not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be offered or sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing the Capital Securities that, if we decide to
offer, sell or otherwise transfer any such Capital Securities prior to the date
which is the later of (i) two years (or such shorter period of time as permitted
by Rule 144(k) under the Securities Act) after the later of (Y) the date of
original issuance of the Capital Securities and (Z) the last date on which the
Trust or any Affiliate (as defined in Rule 405 under the Securities Act) of the
Trust was the holder of any such Capital Securities (or any predecessor thereto)
and (ii) such later date, if any, as may be required by any subsequent change in
applicable law (the "Resale Restriction Termination Date"), then such offer,
sale or other transfer will be made only (a) to the Company or the Trust, (b)
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB"), that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (c) pursuant to
an exemption from registration, to an "accredited investor" within the meaning
of subparagraph (a) (1), (2), (3), (7) or (8) of Rule 501 under the Securities
Act that is acquiring any such Capital Securities for its own account or for the
account of such an accredited investor for investment purposes and not with a
view to, or for offer or sale in connection with, any distribution thereof in
violation of the Securities Act, (d) pursuant to offers and sales to a non-U.S.
Persons that occur outside the United States pursuant to Regulation S under the
Securities Act, or (e) pursuant to another available exemption from the
registration requirements of the Securities Act, and in each of the foregoing
cases in accordance with any applicable state securities laws and any
requirements of law that govern the disposition of our property. If any resale
or other transfer of the Capital Securities is proposed to be made pursuant to
clause (c) above, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Institutional Trustee as
Transfer Agent, which shall provide as applicable, among other things, that the
transferee is an accredited investor within the meaning of subparagraph (a)(1),
(2), (3), (7) or (8) of Rule 501 under the Securities Act that is acquiring
such Capital Securities for investment purposes and not for any distribution in
violation of the Securities Act. In addition, if any resale or other transfer of
the Capital Securities is proposed to be made pursuant to clause (b) or (d)
above, the transferor, in the case of clause (b), or the transferee, in the case
of clause (d), shall deliver a letter substantially in the form of Exhibit C, in
the case of clause (b), or Exhibit D, in the case of clause (d), to the
Declaration. We acknowledge on our behalf and on behalf of any investor account
for which we are purchasing Capital Securities that the Company and the Trust
reserve the right prior to any offer, sale or other transfer pursuant to clause
(c) or (e) to require the delivery of any Opinion of Counsel, certifications
and/or other information satisfactory to Dime Community Bancshares, Inc. (the
"Company") and the Trust. We understand that the certificates for any Capital
Securities that we receive prior to the Resale Restriction Termination Date will
bear a legend substantially to the effect of the foregoing.
2. We are an accredited investor within the meaning of subparagraph (a) (1), (2), (3), (7) or (8) of Rule 501 under the Securities Act purchasing for our own account or for the account of such an accredited investor, and we are acquiring the Capital Securities for investment purposes and not with view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, and we have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Capital Securities, and we and any account for which we are acting are each able to bear the economic risks of our or its investment.
3. We are acquiring the Capital Securities purchased by us for our own account (or for one or more accounts as to each of which we exercise sole investment discretion and have authority to make, and do make, the statements contained in this letter) and not with a view to any distribution of the Capital Securities in violation of the Securities Act, subject, nevertheless, to the understanding that the disposition of our property will at all times be and remain within our control.
4. In the event that we purchase any Capital Securities, we will acquire such Capital Securities having an aggregate Liquidation Amount of not less than $100,000 for our own account and for each separate account for which we are acting.
5. We acknowledge that we either (A) are not a fiduciary of a pension, profit-sharing or other employee benefit plan or arrangement subject to the Employee Retirement Income Security Act of 1974, as amended, or to Section 4975 of the Internal Revenue Code of 1986, as amended (a "Plan"), or an entity whose assets include "plan assets" by reason of any Plan's investment in the entity and are not purchasing the Capital Securities on behalf of or with "plan assets" by reason of any Plan's investment in the entity and are not purchasing the Capital Securities on behalf of or with "plan assets" of any Plan or (B) are eligible for the exemptive relief available under one or more of the following prohibited transaction class exemptions ("PTCEs") issued by the U.S. Department of Labor: PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
6. We acknowledge that each Plan, by its purchase of the Capital Securities, will be deemed to have directed the Trust to invest in junior subordinated debt securities of the Company, and to have consented to the appointment of the institutional trustee of the Trust.
7. We acknowledge that the Company, the Trust and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations, warranties and agreements and agree that if any of our acknowledgments, representations, warranties and agreements are no longer accurate, we shall promptly notify the applicable Placement Agent. If we are acquiring any Capital Securities as a fiduciary or agent for one or more investor accounts, we represent that we have sole discretion with respect to each such investor account and that we have full power to make the foregoing acknowledgments, representations and agreements on behalf of each such investor account.
You are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy thereof to any interested party in any administrative or legal proceeding or other inquiry with respect to matters covered hereby.
By:________________________________
Date:______________________________
Upon transfer, the Capital Securities should be registered in the name of the new beneficial owner as follows.
Name:_________________________
Address:______________________
Taxpayer ID Number:_____________________
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
TO BE EXECUTED FOR QIBs
__________, [ ]
Dime Community Bancshares, Inc.
Dime Community Capital Trust I
c/o Dime Community Bancshares, Inc.
209 Havemeyer Street
Brooklyn, New York 11211
Reference is hereby made to the Amended and Restated Declaration of Trust of Dime Community Capital Trust I, dated as of March 19, 2004 (the "Declaration"), among Kenneth J. Mahon, Michael Pucella and Lance Bennett, as Administrators, Wilmington Trust Company, as Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, Dime Community Bancshares, Inc., as Sponsor, and the holders from time to time of undivided beneficial interests in the assets of the Trust. Capitalized terms used but not defined herein shall have the meanings given them in the Declaration.
This letter relates to $[_______________] aggregate Liquidation Amount of Capital Securities which are held in the name of [name of transferor] (the "Transferor").
In accordance with Section 9.2(b) of the Declaration, the Transferor does hereby certify that such Capital Securities are being transferred in accordance with (i) the transfer restrictions set forth in the Capital Securities and (ii) Rule 144A under the Securities Act ("Rule 144A"), to a transferee that the Transferor reasonably believes is purchasing the Capital Securities for its own account or an account with respect to which the transferee exercises sole investment discretion and the transferee and any such account is a "qualified institutional buyer" within the meaning of Rule 144A, in a transaction meeting the requirements of Rule 144A and in accordance with applicable securities laws of any state of the United States or any other jurisdiction.
You are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy thereof to any interested party in any administrative or legal proceeding or other inquiry with respect to matters covered hereby.
By:__________________________
Name:____________________
Title:___________________
Date: ___________________
EXHIBIT D
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED BY NON U.S PERSONS
__________, [ ]
Dime Community Bancshares, Inc.
Dime Community Capital Trust I
c/o Dime Community Bancshares, Inc.
209 Havemeyer Street
Brooklyn, New York 11211
Reference is hereby made to the Amended and Restated Declaration of Trust of Dime Community Capital Trust I, dated as of March 19, 2004 (the "Declaration"), among Kenneth J. Mahon, Michael Pucella and Lance Bennett, as Administrators, Wilmington Trust Company, as Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, Dime Community Bancshares, Inc., as Sponsor, and the holders from time to time of undivided beneficial interests in the assets of the Trust. Capitalized terms used but not defined herein shall have the meanings given them in the Declaration.
This letter relates to $[_______________] aggregate Liquidation Amount of Capital Securities which are held in the name of [name of transferor].
In accordance with Section 9.2(b) of the Declaration, we do hereby certify that (i) we are not a "U.S. person" (as such term is defined in Rule 902 under the Securities Act), (ii) we are not acquiring the Capital Securities for the account or benefit of any U.S. person and (iii) the offer and sale of the Capital Securities to us constitutes an "offshore transaction" under Regulation S under the Securities Act.
You are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy thereof to any interested party in any administrative or legal proceeding or other inquiry with respect to matters covered hereby.
By:__________________________
Name: ___________________
Title: __________________
Date:__________________________
COMMON SECURITY
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION.
EXCEPT AS SET FORTH IN SECTION 9.1(b) OF THE DECLARATION (AS DEFINED BELOW), THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.
Certificate Number C-001 Number of Common Securities 2,165
Certificate Evidencing Common Securities
of
Dime Community Capital Trust I
Fixed Rate Common Securities
(Liquidation Amount $1,000 per Common Security)
Dime Community Capital Trust I, a statutory trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that Dime Community Banchares, Inc. is the registered owner (the "Holder") of common securities of the Trust representing undivided common beneficial interests in the assets of the Trust (Liquidation Amount $1,000 per Common Security)(the "Common Securities"). The Common Securities represented hereby are issued pursuant to, and the designation, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities shall in all respects be subject to, the provisions of the Amended and Restated Declaration of Trust of the Trust, dated as of March 19, 2004, among Kenneth J. Mahon, Michael Pucella and Lance Bennett, as Administrators, Wilmington Trust Company, as Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, the Holder, as Sponsor, and the holders from time to time of undivided beneficial interests in the assets of the Trust, including the designation of the terms of the Common Securities as set forth in Annex I to the Declaration, as the same may be amended from time to time (the "Declaration"). Capitalized terms used herein but not defined shall have the meaning given them in the Declaration. The Sponsor will provide a copy of the Declaration and the Indenture to the Holder without charge upon written request to the Sponsor at its principal place of business.
As set forth in the Declaration, when an Event of Default has occurred and is continuing, the rights of the Holder of Common Securities to payment in respect of Distributions and payments upon Liquidation, redemption or otherwise are subordinated to the rights of payment of holders of the Capital Securities.
By acceptance of this Certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder.
By acceptance of this Certificate, the Holder agrees to treat, for United States federal income tax purposes, the Debt Securities as indebtedness and the Common Securities as evidence of undivided beneficial ownership in the Debt Securities through a grantor trust.
This Certificate and the Common Securities evidenced hereby are governed by, and shall be construed in accordance with, the laws of the State of Delaware, without regard to principles of conflict of laws.
IN WITNESS WHEREOF, the Trust has executed this Certificate this 19th day of March, 2004.
Dime Community Capital Trust I
By: /s/ Kenneth J. Mahon
-----------------------------
Kenneth J. Mahon
Administrator
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[REVERSE OF SECURITY]
Distributions payable on each Common Security will be identical in amount to the Distributions payable on each Capital Security, which is at a fixed rate of interest per annum, which, with respect to any Distribution Period (as defined herein) (such rate, together with the rate of any applicable Liquidated Damages (as defined in the Registration Rights Agreement), is referred to herein as the "Coupon Rate"). Distributions in arrears for more than one Distribution Period will bear interest thereon, compounded quarterly, at the applicable Coupon Rate for each Distribution Period thereafter (to the extent permitted by applicable law). The term "Distributions", as used herein, includes cash Distributions, any such compounded Distributions and any Additional Amounts payable on the Debt Securities and Liquidated Damages, if any, unless otherwise stated. A Distribution is payable only to the extent that payments are made in respect of the Debt Securities held by the Institutional Trustee and to the extent the Institutional Trustee has funds legally available in the Property Account therefor. The amount of Distributions payable for any Distribution Period will be computed on the basis of a 360-day year consisting of twelve 30 day months.
Except as otherwise described below, Distributions on the Common Securities will be cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears on January 15th, April 15th, July 15th and October 15th of each year, commencing on July 15, 2004, and on any date of redemption (each, a "Distribution Payment Date"), subject to the Business Day convention specified in the Declaration. The Debt Security Issuer has the right under the Indenture to defer payments of interest on the Debt Securities by extending the interest payment period for up to 20 consecutive quarterly periods (each such extended interest payment period, together with all previous and future consecutive extensions thereof, is referred to herein as an "Extension Period") at any time and from time to time on the Debt Securities, subject to the conditions described below and in the Declaration and the Indenture. No Extension Period may end on a date other than a Distribution Payment Date or extend beyond the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be. During any Extension Period, interest will continue to accrue on the Debt Securities, and interest on such accrued interest (such accrued interest and interest thereon referred to herein as "Deferred Interest") will accrue, at an annual rate equal to the Coupon Rate, compounded quarterly from the date such Deferred Interest would have been payable were it not for the Extension Period, to the extent permitted by applicable law. At the end of any Extension Period, the Debt Security Issuer shall pay all Deferred Interest then accrued and unpaid on the Debt Securities; provided, however, that prior to the termination of any Extension Period, the Debt Security Issuer may further extend such Extension Period, provided, that no Extension Period (including all previous and further consecutive extensions that are part of such Extension Period) shall exceed 20 consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of all Deferred Interest, the Debt Security Issuer may commence a new Extension Period, subject to the requirements set forth herein and in the Declaration and the Indenture. No interest or Deferred Interest (except any Additional Amounts that may be due and payable) shall be due and payable during an Extension Period, except at the end thereof, but Deferred Interest shall accrue upon each installment of interest that
would otherwise have been due and payable during such Extension Period until such installment is paid.
As a consequence of any Extension Period, Distributions will be deferred. If Distributions are deferred, the Distributions due shall be paid on the date that the related Extension Period terminates to Holders of the Trust Securities as they appear on the books and records of the Trust on the regular record date immediately preceding the Distribution Payment Date on which such Extension Period terminates to the extent that the Trust has funds legally available for the payment of such Distributions in the Property Account of the Trust.
The Common Securities shall be redeemable, and shall be entitled to the Liquidation Distribution, as provided in the Declaration.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Securities evidenced by this Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee),
and irrevocably appoints as agent to transfer the Common Securities evidenced by this Certificate on the books of the Trust. The agent may substitute another to act for him or her.
Date:____________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Certificate)
Signature Guarantee:1 ________________________
SERIES A
GUARANTEE AGREEMENT
DIME COMMUNITY BANCSHARES, INC.
Dated as of March 19, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation...............................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.............................................................5
SECTION 2.2 Lists of Holders of Securities...............................................................5
SECTION 2.3 Reports by the Guarantee Trustee.............................................................5
SECTION 2.4 Periodic Reports.............................................................................5
SECTION 2.5 Evidence of Compliance with Conditions Precedent.............................................6
SECTION 2.6 Events of Default; Waiver....................................................................6
SECTION 2.7 Notice of Events of Default..................................................................6
SECTION 2.8 Conflicting Interests........................................................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee...................................................7
SECTION 3.2 Certain Rights of the Guarantee Trustee......................................................8
SECTION 3.3 Not Responsible for Recitals or Issuance of Series A Guarantee..............................10
ARTICLE IV
THE GUARANTEE TRUSTEE
SECTION 4.1 The Guarantee Trustee; Eligibility..........................................................10
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee Trustee...............................11
ARTICLE V
SERIES A GUARANTEE
SECTION 5.1 Guarantee...................................................................................12
SECTION 5.2 Waiver of Notice and Demand.................................................................12
SECTION 5.3 Obligations Not Affected....................................................................12
SECTION 5.4 Rights of Holders...........................................................................13
SECTION 5.5 Guarantee of Payment........................................................................13
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SECTION 5.6 Subrogation.................................................................................14
SECTION 5.7 Independent Obligations.....................................................................14
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions..................................................................14
SECTION 6.2 Ranking.....................................................................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.................................................................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.................................................................................15
SECTION 8.2 Indemnification.............................................................................16
SECTION 8.3 Compensation; Reimbursement of Expenses.....................................................17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns......................................................................17
SECTION 9.2 Amendments..................................................................................18
SECTION 9.3 Notices.....................................................................................18
SECTION 9.4 Exchange Offer..............................................................................19
SECTION 9.5 Benefit.....................................................................................19
SECTION 9.6 Governing Law...............................................................................19
SECTION 9.7 Counterparts................................................................................19
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CROSS REFERENCE TABLE
Section of Trust
Indenture Act of Section of Series A
1939, as amended Guarantee Agreement
---------------- -------------------
310(a) .................................................................... 4.1(a)
310(b) .................................................................... 2.8, 4.1(c)
310(c) .................................................................... N/A
311(a) .................................................................... 2.2(b)
311(b) .................................................................... 2.2(b)
311(c) .................................................................... N/A
312(a) .................................................................... 2.2(a)
312(b) .................................................................... 2.2(b)
312(c) .................................................................... N/A
313 .................................................................... 2.3
314(a) .................................................................... 2.4
314(b) .................................................................... N/A
314(c) .................................................................... 2.5
314(d) .................................................................... N/A
314(e) .................................................................... 1.1, 2.5, 3.2
314(f) .................................................................... 2.1, 3.2
315(a) .................................................................... 3.1(d), 3.2(a)
315(b) .................................................................... 2.7
315(c) .................................................................... 3.1(c)
315(d) .................................................................... 3.1(d), 3.2(a), 8.1
315(e) .................................................................... N/A
316(a) .................................................................... 1.1, 2.6, 5.4
316(b) .................................................................... 5.3, 5.4
316(c) .................................................................... 9.2
317(a) .................................................................... N/A
317(b) .................................................................... N/A
318(a) .................................................................... 2.1(a)
318(b) .................................................................... 2.1(b)
318(c) .................................................................... 2.1(b)
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This SERIES A GUARANTEE AGREEMENT (the "Series A Guarantee"), dated as of March 19, 2004, is executed and delivered by Dime Community Bancshares, Inc., a Delaware corporation (the "Guarantor"), and Wilmington Trust Company, a Delaware banking corporation, as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined herein) from time to time of the Series A Capital Securities (as defined herein) of Dime Community Capital Trust I, a Delaware statutory trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Declaration"), dated as of March 19, 2004, among the trustees named therein of the Issuer, Dime Community Bancshares, Inc., as sponsor, and the Holders from time to time of undivided beneficial interests in the assets of the Issuer, the Issuer is issuing on the date hereof 70,000 capital securities, having an aggregate Liquidation Amount of $70,000,000, designated in the Declaration as the Fixed Rate Capital Securities, Series A (collectively the "Series A Capital Securities"), and the Series B Capital Securities (as defined in the Declaration) issuable in the Exchange Offer (as defined herein) and (ii) the Guarantor, in connection with an Exchange Offer, will execute and deliver the Series B Guarantee (as defined in the Declaration) for the benefit of Holders of the Series B Capital Securities; and
WHEREAS, as incentive for the Holders to purchase the Series A Capital Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Series A Guarantee, to pay to the Holders of Series A Capital Securities the Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of the Series A Capital Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Series A Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS AND INTERPRETATION.
In this Series A Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Series A Guarantee but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Series A Guarantee has the same meaning throughout;
(c) all references to "the Series A Guarantee" or "this Series A Guarantee" are to this Series A Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Series A Guarantee to Articles and Sections are to Articles and Sections of this Series A Guarantee, unless otherwise specified;
(e) a term defined in the Declaration as of the date of execution of this Series A Guarantee has the same meanings when used in this Series A Guarantee, unless otherwise defined in this Series A Guarantee or unless the context otherwise requires; and
(f) a term defined in the Trust Indenture Act has the same meaning when used in this Series A Guarantee, unless otherwise defined in this Series A Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Common Securities" has the meaning specified in the Declaration.
"Corporate Trust Office" means the office of the Series A Guarantee Trustee at which at any particular time its corporate trust business shall be principally administered, which at all times shall be located within the United States and at the time of the execution of this Series A Guarantee shall be Rodney Square North, 1100 North Market Street, Wilmington, DE 19890-0001.
"Covered Person" means any Holder of Series A Capital Securities.
"Debt Security Issuer" means Dime Community Bancshares, Inc. or any permitted successor entity resulting from any consolidation, amalgamation, merger or other business combination, in its capacity as issuer of the Debt Securities.
"Debt Securities" means the junior subordinated debt securities of the Debt Security Issuer that are designated in the Indenture as the "Fixed Rate Junior Subordinated Deferrable Interest Debt Securities due 2034, Series A", and held by the Institutional Trustee (as defined in the Declaration) of the Issuer.
"Exchange Offer" means the offer that may be made pursuant to the Registration Rights Agreement (i) by the Company to exchange the Exchange Securities (as defined in the Indenture) for the Debt Securities and to execute the Series B Guarantee in respect of the Series B Capital Securities and (ii) by the Trust to exchange the Series B Capital Securities for the Series A Capital Securities.
"Event of Default" has the meaning set forth in Section 2.6.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series A Capital
Securities, to the extent not paid or made by the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Declaration) which are required to be
paid on such Series A Capital Securities to the extent the Issuer has funds
available in the Property Account (as defined in the Declaration) therefor at
such time, (ii) the price payable upon the redemption of any Series A Capital
Securities to the extent the Issuer has funds available in the Property Account
therefor at such time, with respect to any Series A Capital Securities that are
(1) called for redemption by the Issuer or (2) mandatorily redeemed by
the Issuer, in each case, in accordance with the terms of such Series A Capital
Securities, and (iii) upon a voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Debt Securities to the Holders of the Series A Capital
Securities in exchange therefor as provided in the Declaration), the lesser of
(a) the aggregate of the Liquidation Amount of the Series A Capital Securities
and all accrued and unpaid Distributions on the Series A Capital Securities to
the date of payment, to the extent the Issuer has funds available in the
Property Account therefor at such time, and (b) the amount of assets of the
Issuer remaining available for distribution to Holders in liquidation of the
Issuer after satisfaction of liabilities to creditors of the Issuer as required
by applicable law (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Series A Guarantee and thereafter means each such Successor Guarantee Trustee.
"Holder" means any Person in whose name any Series A Capital Securities are registered on the books and records of the Issuer; PROVIDED, HOWEVER, that, in determining whether the holders of the requisite percentage of Series A Capital Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee (including in its individual capacity), any Affiliate of the Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians or agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of March 19, 2004, between the Debt Security Issuer and Wilmington Trust Company, not in its individual capacity but solely as trustee, and any indenture supplemental thereto pursuant to which the Debt Securities are to be issued to the Institutional Trustee of the Issuer.
"Liquidation Distribution" has the meaning set forth in the definition of "Guarantee Payments" herein.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in Liquidation Amount of the Series A Capital Securities" means, except as provided by the Trust Indenture Act, Holder(s) of outstanding Series A Capital Securities, voting together as a single class, but separately from the holders of Common Securities, of more than 50% of the aggregate Liquidation Amount (including the amount that would be paid upon redemption, liquidation or otherwise on the date upon which the voting percentages are determined, plus unpaid Distributions accrued thereon to such date) of all Series A Capital Securities then outstanding.
"Officer's Certificate" means, with respect to any Person, a certificate signed by one Authorized Officer of such Person. Any Officer's Certificate delivered with respect to compliance with a condition or covenant provided for in this Series A Guarantee shall include:
(a) a statement that such officer signing the Officer's Certificate has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.
"Registration Rights Agreement" means the Registration Rights Agreement, dated as of March 12, 2004, by and among the Company, the Trust and the Initial Purchaser named therein, as such agreement may be amended, modified or supplemented from time to time.
"Responsible Officer" means, with respect to the Guarantee Trustee, any officer within the Corporate Trust Office of the Guarantee Trustee with direct responsibility for the administration of any matters relating to this Series A Guarantee, including any vice president, any assistant vice president, any secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or other officer of the Corporate Trust Office of the Guarantee Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended.
"Trust Securities" means the Common Securities and the Series A Capital Securities and Series B Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION
(a) This Series A Guarantee is subject to the provisions of the Trust Indenture Act that are required to be part of this Series A Guarantee and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Series A Guarantee limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. If any provision of this Series A Guarantee modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the modified or excluded provision of the Trust Indenture Act shall be deemed to apply to this Series A Guarantee as so modified or excluded, as the case may be.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES
(a) The Guarantor shall provide the Guarantee Trustee (unless the Guarantee Trustee is otherwise the registrar of the Series A Capital Securities) with a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders") as of such date, (i) within 14 days after each record date for payment of Distributions (as defined in the Declaration), and (ii) at any other time within 30 days of receipt by the Guarantor of a written request for a List of Holders as of a date no more than 14 days before such List of Holders is given to the Guarantee Trustee; PROVIDED, HOWEVER, that the Guarantor shall not be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Guarantee Trustee by the Guarantor. The Guarantee Trustee may destroy any List of Holders previously given to it upon receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE GUARANTEE TRUSTEE
Within 60 days after the date hereof, and no later than the anniversary date hereof in each succeeding year, the Guarantee Trustee shall provide to the Holders such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS
The Guarantor shall provide to the Guarantee Trustee such documents, reports and information (if any) as are required by Section 314 and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. Delivery of such reports, information and documents to
the Guarantee Trustee is for informational purposes only, and the Guarantee Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor's compliance with any of its covenants hereunder (as to which the Guarantee Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with the conditions precedent, if any, provided for in this Series A Guarantee that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER
(a) An "Event of Default" under this Series A Guarantee will occur upon the failure of the Guarantor to perform any of its payment or other obligations hereunder.
(b) The Holders of a Majority in Liquidation Amount of the Series A Capital Securities may, by vote, on behalf of all of the Holders, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Series A Guarantee, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
SECTION 2.7 NOTICE OF EVENTS OF DEFAULT
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default with respect to this Series A Guarantee actually known to a Responsible Officer of the Guarantee Trustee, transmit by mail, first class postage prepaid, to all Holders, notices of all such Events of Default, unless such Events of Default have been cured before the giving of such notice; PROVIDED, HOWEVER, that, except in the case of an Event of Default arising from the non-payment of any Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless the Guarantee Trustee shall have received written notice, or a Responsible Officer of the Guarantee Trustee charged with the administration of the Declaration shall have obtained actual knowledge, of such Event of Default.
SECTION 2.8 CONFLICTING INTERESTS
The Declaration shall be deemed to be specifically described in this Series A Guarantee for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Series A Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders of the Series A Capital Securities, and the Guarantee Trustee shall not transfer this Series A Guarantee to any Person except a Holder of Series A Capital Securities exercising his or her rights pursuant to Section 5.4 (b) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall automatically vest in any Successor Guarantee Trustee, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee shall enforce this Series A Guarantee for the benefit of the Holders of the Series A Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and after the curing or waiving of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Series A Guarantee, and no implied covenants shall be read into this Series A Guarantee against the Guarantee Trustee. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6(b)) and is actually known to a Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Series A Guarantee, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Series A Guarantee shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or bad faith, except that:
(i) prior to the occurrence of any Event of Default and after the curing or waiving of all Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Series A Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Series A Guarantee, and no implied covenants or obligations shall be read into this Series A Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Series A Guarantee; PROVIDED, HOWEVER that in the case of any such certificates or opinions furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not on their face they conform to the requirements of this Series A Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that such Responsible Officer of the Guarantee Trustee or the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written direction of the Holders of a Majority in Liquidation Amount of the Series A Capital Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Series A Guarantee; and
(iv) no provision of this Series A Guarantee shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds is not reasonably assured to it under the terms of this Series A Guarantee, or security and indemnity, reasonably satisfactory to the Guarantee Trustee, against such risk or liability is not reasonably assured to it.
SECTION 3.2 CERTAIN RIGHTS OF THE GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be fully protected in acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debt security, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this Series A Guarantee shall be sufficiently evidenced by an Officer's Certificate.
(iii) Whenever, in the administration of this Series A Guarantee, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's Certificate of the Guarantor which, upon receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to any recording, filing or registration of any instrument or other writing (or any rerecording, refiling or reregistration thereof).
(v) The Guarantee Trustee may consult with counsel of its selection, and the advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Guarantor or any of its Affiliates and may include any of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Series A Guarantee from any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Series A Guarantee at the request or direction of any Holder, unless such Holder shall have provided to the Guarantee Trustee such security and indemnity, reasonably satisfactory to the Guarantee Trustee, against the costs, expenses (including attorneys' fees and expenses and the expenses of the Guarantee Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee; PROVIDED, HOWEVER, that nothing contained in this Section 3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Series A Guarantee.
(vii) The Guarantee Trustee shall have no obligation to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debt security, note, other evidence of indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, nominees, custodians or attorneys, and the Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any such person appointed with due care by it hereunder.
(ix) Any action taken by the Guarantee Trustee or its agents hereunder shall bind the Holders of the Series A Capital Securities, and the signature of the Guarantee Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to the authority of the Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of this Series A Guarantee, both of which shall be conclusively evidenced by the Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series A Guarantee the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request instructions from the Holders of a Majority in Liquidation Amount of the Series A Capital Securities, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (C) shall be protected in conclusively relying on or acting in accordance with such instructions.
(xi) The Guarantee Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith, without negligence and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Series A Guarantee.
(b) No provision of this Series A Guarantee shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SERIES A GUARANTEE.
The recitals contained in this Series A Guarantee shall be taken as the statements of the Guarantor, and the Guarantee Trustee does not assume any responsibility for their correctness. The Guarantee Trustee makes no representation as to the validity or sufficiency of this Series A Guarantee.
ARTICLE IV
THE GUARANTEE TRUSTEE
SECTION 4.1 THE GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation or national association organized and doing business under the laws of the United States of America or any state thereof or of the District of Columbia, or other Person permitted by the Securities and Exchange Commission to act as an indenture trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state or District of Columbia authority. If such corporation, national association or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then, for the purposes of this Section 4.1(a)(ii), and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such corporation, national association or other Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set forth in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or removed without cause at any time by the Guarantor except during an Event of Default.
(b) The Guarantee Trustee shall not be removed in accordance with Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee shall hold office until a Successor Guarantee Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor Guarantee Trustee has been appointed, subject to Section 4.1, and has accepted such appointment by an instrument in writing executed by such Successor Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.2 within 60 days after delivery of an instrument of removal or resignation, the Guarantee Trustee resigning or being removed may petition any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Series A Guarantee or removal or resignation of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the Guarantee Trustee all amounts owing to the Guarantee Trustee under Sections 8.2 and 8.3 accrued to the date of such termination, removal or resignation.
ARTICLE V
SERIES A GUARANTEE
SECTION 5.1 GUARANTEE.
(a) The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by the Issuer), as and when due, regardless of any defense (except defense of payment by the Issuer), right of set-off or counterclaim that the Issuer may have or assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Series A Guarantee and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor under this Series A Guarantee shall in no way be affected or impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer of any express or implied agreement, covenant, term or condition relating to the Series A Capital Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any portion of the Distributions, the price payable upon the redemption of the Series A Capital Securities, the Liquidation Distribution or any other sums payable under the terms of the Series A Capital Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Series A Capital Securities (other than an extension of time for the payment of the Distributions, the price payable upon the redemption of the Series A Capital Securities, the Liquidation Distribution or other sums payable that results from the extension of any interest payment period on the Debt Securities);
(c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Series A Capital Securities, or any action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Series A Capital Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 4.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) The Holders of a Majority in Liquidation Amount of the Series A Capital Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Series A Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under this Series A Guarantee; PROVIDED, HOWEVER, that (subject to Sections 3.1 and 3.2) the Guarantee Trustee shall have the right to decline to follow any such direction if the Guarantee Trustee shall determine that the actions so directed would be unjustly prejudicial to the Holders not taking part in such direction or if the Guarantee Trustee being advised by legal counsel determines that the action or proceeding so directed may not lawfully be taken or if the Guarantee Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors or trustees and/or Responsible Officers shall determine that the action or proceeding so directed would involve the Guarantee Trustee in personal liability.
(b) Any Holder of Series A Capital Securities may institute a legal proceeding directly against the Guarantor to enforce the Guarantee Trustee's rights under this Series A Guarantee, without first instituting a legal proceeding against the Issuer, the Guarantee Trustee or any other Person. The Guarantor waives any right or remedy to require that any such action be brought first against the Issuer, the Guarantee Trustee or any other Person before so proceeding directly against the Guarantor.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Series A Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders of Series A Capital Securities against the Issuer in respect of any amounts paid to such Holders by the Guarantor under this Series A Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not (except to the extent required by applicable provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Series A Guarantee, if, after giving effect to any such payment, any amounts are due and unpaid under this Series A Guarantee. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Series A Capital Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Series A Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Series A Capital Securities remain outstanding,
if at any time (1) there shall have occurred and be continuing a Default or an
Event of Default, (2) the Guarantor shall be in default with respect to its
payment of any obligations under this Series A Guarantee or (3) the Guarantor
shall have given notice of its election to defer payments of interest on the
Debt Securities by extending the interest payment period as provided in Section
2.08 of the Indenture and such period, or any extension thereof, shall have
commenced and be continuing, then the Guarantor may not (x) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Guarantor's capital stock, (y)
make any payment of principal of or interest or premium, if any, or interest or
Liquidated Damages, if any, on or repay, repurchase or redeem any debt
securities of the Guarantor that rank in all respects PARI PASSU with or junior
in interest to the Debt Securities or (z) make any payment under any guarantees
of the Guarantor that rank in all respects PARI PASSU with or junior in interest
to this Series A Guarantee (other than (i) repurchases, redemptions or other
acquisitions of shares of capital stock of the Guarantor (A) in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of one or more employees, officers, directors, or consultants, (B)
in connection with a dividend reinvestment or stockholder stock purchase plan or
(C) in connection with the issuance of capital stock of the Guarantor (or
securities convertible into or exercisable for such capital stock), as
consideration in an acquisition transaction entered into prior to the occurrence
of (1), (2) or (3) above, (ii) as a result of any exchange or conversion of any
class or series of the
Guarantor's capital stock (or any capital stock of a subsidiary of the
Guarantor) for any class or series of the Guarantor's capital stock or of any
class or series of the Guarantor's indebtedness for any class or series of the
Guarantor's capital stock, (iii) the purchase of fractional interests in shares
of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(iv) any declaration of a dividend in connection with any stockholder's rights
plan, or the issuance of rights, stock or other property under any stockholder's
rights plan, or the redemption or repurchase of rights pursuant thereto, or (v)
any dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks PARI PASSU with or junior in interest to such stock).
SECTION 6.2 RANKING.
This Series A Guarantee will constitute an unsecured obligation of the Guarantor and will rank subordinate and junior in right of payment to all present and future Senior Indebtedness (as defined in the Indenture) to the same extent and in the same manner that the Debt Securities are subordinated to Senior Indebtedness pursuant to the Indenture, it being understood that the terms of Article XV of the Indenture shall apply to the obligations of the Guarantor. By their acceptance thereof, each Holder of Series A Capital Securities agrees to the foregoing provisions of this Series A Guarantee and the other terms set forth herein.
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION.
This Series A Guarantee shall terminate as to the Series A
Capital Securities upon (i) full payment of the price payable upon redemption of
all Series A Capital Securities then outstanding, (ii) the distribution of all
of the Debt Securities to the Holders of all of the Series A Capital Securities,
(iii) full payment of the amounts payable in accordance with the Declaration
upon dissolution of the Issuer or (iv) the exchange of all Series A Capital
Securities for Series B Capital Securities pursuant to the Exchange Offer. This
Series A Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder of Series A Capital Securities must
restore payment of any sums paid under the Series A Capital Securities or under
this Series A Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Guarantor or any Covered Person for any loss, damage or claim incurred by reason of any act or omission of such Indemnified Person in good faith in accordance with this Series A Guarantee and in a manner that such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Series A Guarantee or by law, except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's negligence, willful misconduct or bad faith with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Issuer or the Guarantor and upon such information, opinions, reports or statements presented to the Issuer or the Guarantor by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who, if selected by such Indemnified Person, has been selected with reasonable care by such Indemnified Person, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Series A Capital Securities might properly be paid.
SECTION 8.2 INDEMNIFICATION.
(a) The Guarantor agrees to indemnify each Indemnified Person for, and to hold each Indemnified Person harmless against, any and all loss, liability, damage, claim or expense incurred without negligence, willful misconduct or bad faith on the part of the Indemnified Person, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including but not limited to the costs and expenses (including reasonable legal fees and expenses) of the Indemnified Person defending itself against, or investigating, any claim or liability in connection with the exercise or performance of any of the Indemnified Person's powers or duties hereunder. The obligation to indemnify as set forth in this Section 8.2 shall survive the resignation or removal of the Guarantee Trustee and the termination of this Series A Guarantee.
(b) Promptly after receipt by an Indemnified Person under this
Section 8.2 of notice of the commencement of any action, such Indemnified Person
will, if a claim in respect thereof is to be made against the Guarantor under
this Section 8.2, notify the Guarantor in writing of the commencement thereof;
but the failure so to notify the Guarantor (i) will not relieve the Guarantor
from liability under paragraph (a) above unless and to the extent that the
Guarantor did not otherwise learn of such action and such failure results in the
forfeiture by the Guarantor of substantial rights and defenses and (ii) will
not, in any event, relieve the Guarantor from any obligations to any Indemnified
Person other than the indemnification obligation provided in paragraph (a)
above. The Guarantor shall be entitled to appoint counsel of the Guarantor's
choice at the Guarantor's expense to represent the Indemnified Person in any
action for which indemnification is sought (in which case the Guarantor shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the Indemnified Person or Persons except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the Indemnified
Person. Notwithstanding the Guarantor's election to appoint counsel to represent
the Indemnified Person in any action, the Indemnified Person shall have the
right to employ separate counsel (including local counsel), and the Guarantor
shall bear the reasonable fees, costs and expenses of such separate counsel, if
(i) the use of counsel chosen by the Guarantor to represent the Indemnified
Person would present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such action include both the
Indemnified Person and the Guarantor and the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it and/or
other Indemnified Persons
which are different from or additional to those available to the Guarantor,
(iii) the Guarantor shall not have employed counsel satisfactory to the
Indemnified Person to represent the Indemnified Person within a reasonable time
after notice of the institution of such action or (iv) the Guarantor shall
authorize the Indemnified Person to employ separate counsel at the expense of
the Guarantor. The Guarantor will not, without the prior written consent of the
Indemnified Persons, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the Indemnified Persons are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Person from all liability
arising out of such claim, action, suit or proceeding.
SECTION 8.3 COMPENSATION; REIMBURSEMENT OF EXPENSES.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such compensation for all services rendered by it hereunder as the parties shall agree to from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon request for all reasonable expenses, disbursements and advances incurred or made by it in accordance with any provision of this Series A Guarantee (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the negligence, willful misconduct or bad faith of the Guarantee Trustee.
The provisions of this Section 8.3 shall survive the resignation or removal of the Guarantee Trustee and the termination of this Series A Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Series A Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Series A Capital Securities then outstanding. Except in connection with any merger or consolidation of the Guarantor with or into another entity or any sale, transfer or lease of the Guarantor's assets to another entity, in each case to the extent permitted under the Indenture, the Guarantor may not assign its rights or delegate its obligations under this Series A Guarantee without the prior approval of the Holders of a Majority in Liquidation Amount of the Series A Capital Securities.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not adversely affect the powers, preferences, rights or interests of Holders of the Series A Capital Securities in any material respect (in which case no approval of Holders will be required), this Series A Guarantee may be amended only with the prior approval of the Holders of a Majority in Liquidation Amount of the Series A Capital Securities. The provisions of the Declaration with respect to amendments thereof shall apply equally with respect to amendments of the Series A Guarantee.
SECTION 9.3 NOTICES.
All notices provided for in this Series A Guarantee shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Guarantee Trustee, at the Guarantee Trustee's mailing address set forth below (or such other address as the Guarantee Trustee may give notice of to the Holders of the Series A Capital Securities):
Wilmington Trust Company Rodney Square North, 1100 North Market Street Wilmington, Delaware 19890-0001 Attention: Lance Bennett, Esq.
Telecopy: (302) 651-8882
Telephone: (302) 651-1000;
(b) if given to the Guarantor, at the Guarantor's mailing address set forth below (or such other address as the Guarantor may give notice of to the Holders of the Series A Capital Securities and to the Guarantee Trustee):
Dime Community Bancshares, Inc.
209 Havemeyer Street
Brooklyn, New York 11211
Attention: Chief Financial Officer
Telecopy: (718) 782-4683
Telephone: (718) 782-4683; or
(c) if given to any Holder of the Series A Capital Securities, at the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 EXCHANGE OFFER.
In the event an Exchange Offer Registration Statement (as defined in the Registration Rights Agreement) becomes effective and the Issuer exchanges any Series B Capital Securities for Series A Capital Securities in the Exchange Offer, the Guarantor will enter into the Series B Capital Securities Guarantee, which will be in substantially the same form as this Series A Capital Securities Guarantee, with respect to the Series B Capital Securities and will execute and deliver authenticated Exchange Securities, which shall be in substantially the same form as the Debt Securities, in exchange for the Debt Securities. Each Holder, by its acceptance of its Series A Capital Securities, agrees to be bound by the Registration Rights Agreement.
SECTION 9.5 BENEFIT.
This Series A Guarantee is solely for the benefit of the Holders of the Series A Capital Securities and, subject to Section 3.1(a), is not separately transferable from the Series A Capital Securities.
SECTION 9.6 GOVERNING LAW.
THIS SERIES A GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION 9.7 COUNTERPARTS.
This Series A Guarantee may contain more than one counterpart of the signature page and this Series A Guarantee may be executed by the affixing of the signature of the Guarantor and the Series A Guarantee Trustee to any of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page.
THIS SERIES A GUARANTEE is executed as of the day and year first above written.
Dime Community Bancshares, Inc., as Guarantor
By: /s/ Michael P. Devine
----------------------------
Michael P. Devine
President and Chief Operating Officer
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WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By: /s/ Mary C. St. Amand
----------------------------
Mary C. St. Amand
Assistant Vice President
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SERIES B
GUARANTEE AGREEMENT
DIME COMMUNITY BANCSHARES, INC.
Dated as of July 29, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application...............................5 SECTION 2.2 Lists of Holders of Securities.................................5 SECTION 2.3 Reports by the Guarantee Trustee...............................6 SECTION 2.4 Periodic Reports...............................................6 SECTION 2.5 Evidence of Compliance with Conditions Precedent...............6 SECTION 2.6 Events of Default; Waiver......................................6 SECTION 2.7 Notice of Events of Default....................................6 SECTION 2.8 Conflicting Interests..........................................7 |
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.....................7
SECTION 3.2 Certain Rights of the Guarantee Trustee........................9
SECTION 3.3 Not Responsible for Recitals or Issuance of Series B
Guarantee.....................................................10
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ARTICLE IV
THE GUARANTEE TRUSTEE
SECTION 4.1 The Guarantee Trustee; Eligibility............................11
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee
Trustee.......................................................11
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ARTICLE V
SERIES B GUARANTEE
SECTION 5.1 Guarantee.....................................................12
SECTION 5.2 Waiver of Notice and Demand...................................12 SECTION 5.3 Obligations Not Affected......................................12 SECTION 5.4 Rights of Holders.............................................13 SECTION 5.5 Guarantee of Payment..........................................14 SECTION 5.6 Subrogation...................................................14 SECTION 5.7 Independent Obligations.......................................14 |
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions....................................14
SECTION 6.2 Ranking.......................................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination...................................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation...................................................16 SECTION 8.2 Indemnification...............................................16 SECTION 8.3 Compensation; Reimbursement of Expenses.......................17 |
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns........................................18 SECTION 9.2 Amendments....................................................18 SECTION 9.3 Notices.......................................................18 SECTION 9.4 Benefit.......................................................19 SECTION 9.5 Governing Law.................................................19 SECTION 9.6 Counterparts..................................................19 |
CROSS REFERENCE TABLE*
Section of Trust
Indenture Act of Section of Series B
1939, as Amended Guarantee Agreement
---------------- -------------------
310(a) ........................................ 4.1(a)
310(b) ........................................ 2.8, 4.1(c)
310(c) ........................................ N/A
311(a) ........................................ 2.2(b)
311(b) ........................................ 2.2(b)
311(c) ........................................ N/A
312(a) ........................................ 2.2(a)
312(b) ........................................ 2.2(b)
312(c) ........................................ N/A
313 ........................................ 2.3
314(a) ........................................ 2.4
314(b) ........................................ N/A
314(c) ........................................ 2.5
314(d) ........................................ N/A
314(e) ........................................ 1.1, 2.5, 3.2
314(f) ........................................ 2.1, 3.2
315(a) ........................................ 3.1(d), 3.2(a)
315(b) ........................................ 2.7
315(c) ........................................ 3.1(c)
315(d) ........................................ 3.1(d), 3.2(a), 8.1
315(e) ........................................ N/A
316(a) ........................................ 1.1, 2.6, 5.4
316(b) ........................................ 5.3, 5.4
316(c) ........................................ N/A
317(a) ........................................ N/A
317(b) ........................................ N/A
318(a) ........................................ 2.1(a)
318(b) ........................................ 2.1(b)
318(c) ........................................ 2.1(b)
----------------------
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* This Cross-Reference Table does not constitute part of this Series B Guarantee Agreement and shall not affect the interpretation of any of its terms or provisions.
This SERIES B GUARANTEE AGREEMENT (the "Series B Guarantee"), dated as of July 29, 2004, is executed and delivered by Dime Community Bancshares, Inc., a Delaware corporation (the "Guarantor"), and Wilmington Trust Company, a Delaware banking corporation, as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined herein) from time to time of the Series B Capital Securities (as defined herein) of Dime Community Capital Trust I, a Delaware statutory trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Declaration"), dated as of March 19, 2004, among the trustees and administrators named therein of the Issuer, Dime Community Bancshares, Inc., as sponsor, and the Holders from time to time of undivided beneficial interests in the assets of the Issuer, the Issuer issued on March 19, 2004 70,000 capital securities, having an aggregate liquidation amount of $70,000,000, designated in the Declaration as the Fixed Rate Capital Securities, Series A (collectively the "Series A Capital Securities"); and
WHEREAS, the Series A Capital Securities issued by the Issuer and proceeds thereof, together with the proceeds from the issuance of the Issuer's Common Securities (as defined herein), were used to purchase the Junior Subordinated Debt Securities due April 14, 2034 (the "Original Junior Subordinated Debt Securities") of the Guarantor which were deposited with the Trustee, as institutional trustee under the Declaration, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Series A Capital Securities, the Guarantor irrevocably and unconditionally agreed, to the extent set forth in the Series A Guarantee, dated as of March 19, 2004, to pay to the Holders of Series A Capital Securities the Guarantee Payments (as defined therein) and to make certain other payments on the terms and conditions set forth therein; and
WHEREAS, in connection with the offer of the Series A Capital Securities, the Guarantor, the Issuer and Sandler O'Neill & Partners, L.P. executed the Registration Rights Agreement dated March 12, 2004 (the "Registration Rights Agreement"); and
WHEREAS, the Issuer, in order to satisfy its obligations under the Registration Rights Agreement, intends to offer up to $70,000,000 aggregate liquidation amount of its 7.0% Capital Securities, Series B, which have been registered under the Securities Act of 1933, as amended, pursuant to a registration statement in exchange for a like liquidation amount of Series A Capital Securities; and
WHEREAS, pursuant to the Exchange Offer, the Guarantor is also exchanging up to $70,000,000 aggregate principal amount of the Original Junior Subordinated Debt Securities for up to $70,000,000 aggregate principal amount of the Exchange Junior Subordinated Debt Securities due April 14, 2034 of the Guarantor; and
WHEREAS, the Declaration was amended and restated by the Second Amended and Restated Declaration of Trust, dated July 29, 2004 (the "Second Declaration"); and
WHEREAS, pursuant to the Exchange Offer, the Guarantor is required to execute this Series B Guarantee and exchange the Series A Guarantee for this Series B Guarantee.
NOW, THEREFORE, in consideration of the exchange by each Holder of the Series A Capital Securities for the Series B Capital Securities, which exchange the Guarantor hereby agrees shall benefit the Guarantor, (or in the event certain Holders do not exchange their Series A Capital Securities, in order to fulfill its obligations to such Holders under the Series A Guarantee) and intending to be legally bound hereby, the Guarantor executes and delivers this Series B Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS AND INTERPRETATION.
In this Series B Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Series B Guarantee but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Series B Guarantee has the same meaning throughout;
(c) all references to "the Series B Guarantee" or "this Series B Guarantee" are to this Series B Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Series B Guarantee to Articles and Sections are to Articles and Sections of this Series B Guarantee, unless otherwise specified;
(e) a term defined in the Second Declaration as of the date of execution of this Series B Guarantee has the same meanings when used in this Series B Guarantee, unless otherwise defined in this Series B Guarantee or unless the context otherwise requires; and
(f) a term defined in the Trust Indenture Act has the same meaning when used in this Series B Guarantee, unless otherwise defined in this Series B Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Common Securities" has the meaning specified in the Second Declaration.
"Corporate Trust Office" means the office of the Series B Guarantee Trustee at which at any particular time its corporate trust business shall be principally administered, which at all times shall be located within the United States and at the time of the execution of this Series B Guarantee shall be Rodney Square North, 1100 North Market Street, Wilmington, DE 19890-0001.
"Covered Person" means any Holder of Series B Capital Securities.
"Debt Security Issuer" means Dime Community Bancshares, Inc. or any permitted successor entity resulting from any consolidation, amalgamation, merger or other business combination, in its capacity as issuer of the Debt Securities.
"Debt Securities" means the junior subordinated debt securities of the Debt Security Issuer that are designated in the Indenture as the "Fixed Rate Junior Subordinated Deferrable Interest Debt Securities due 2034, Series B", and held by the Institutional Trustee (as defined in the Second Declaration) of the Issuer.
"Exchange Offer" means the offer that may be made pursuant to the Registration Rights Agreement (i) by the Company to exchange the Exchange Securities (as defined in the Indenture) for the Debt Securities (as defined in the Indenture) and to execute this Series B Guarantee in respect of the Series B Capital Securities and (ii) by the Trust to exchange the Series B Capital Securities for the Series A Capital Securities.
"Event of Default" has the meaning set forth in Section 2.6.
"Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Series B Capital Securities, to the extent not paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined in the Second Declaration) which are required to be paid on such Series B Capital Securities to the extent the Issuer has funds available in the Property Account (as defined in the Second Declaration) therefor at such time, (ii) the price payable upon the redemption of any Series B Capital Securities to the extent the Issuer has funds available in the Property Account therefor at such time, with respect to any Series B Capital Securities that are (1) called for redemption by the Issuer or (2) mandatorily redeemed by the Issuer, in each case, in accordance with the terms of such Series B Capital Securities, and (iii) upon a voluntary or involuntary liquidation, dissolution, winding-up or termination of the Issuer (other than in connection with the distribution of Debt Securities to the Holders of the Series B Capital Securities in exchange therefor as provided in the Second Declaration), the lesser of (a) the aggregate of the liquidation amount of the Series B Capital Securities and all accrued and unpaid Distributions on the Series B Capital Securities to the date of payment, to the extent the Issuer has funds available in the Property Account therefor at such time, and (b) the amount of assets of the Issuer remaining available for distribution to Holders in liquidation of the Issuer after satisfaction of liabilities to creditors of the Issuer as required by applicable law (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Series B Guarantee and thereafter means each such Successor Guarantee Trustee.
"Holder" means any Person in whose name any Series B Capital Securities are registered on the books and records of the Issuer; PROVIDED, HOWEVER, that, in determining whether the holders of the requisite percentage of Series B Capital Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee (including in its individual capacity), any Affiliate of the Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians or agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of March 19, 2004, between the Debt Security Issuer and Wilmington Trust Company, not in its individual capacity but solely as trustee, and any indenture supplemental thereto pursuant to which the Debt Securities are to be issued to the Institutional Trustee of the Issuer.
"Liquidation Distribution" has the meaning set forth in the definition of "Guarantee Payments" herein.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in Liquidation Amount of the Series B Capital Securities" means, except as provided by the Trust Indenture Act, Holder(s) of outstanding Series B Capital Securities, voting together as a single class, but separately from the holders of Common Securities, of more than 50% of the aggregate liquidation amount (including the amount that would be paid upon redemption, liquidation or otherwise on the date upon which the voting percentages are determined, plus unpaid Distributions accrued thereon to such date) of all Series B Capital Securities then outstanding.
"Officer's Certificate" means, with respect to any Person, a certificate signed by one Authorized Officer of such Person. Any Officer's Certificate delivered with respect to compliance with a condition or covenant provided for in this Series B Guarantee shall include:
(a) a statement that such officer signing the Officer's Certificate has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.
"Registration Rights Agreement" means the Registration Rights Agreement, dated as of March 12, 2004, by and among the Company, the Trust and the Initial Purchaser named therein, as such agreement may be amended, modified or supplemented from time to time.
"Responsible Officer" means, with respect to the Guarantee Trustee, any officer within the Corporate Trust Office of the Guarantee Trustee with direct responsibility for the administration of any matters relating to this Series B Guarantee, including any vice president, any assistant vice president, any secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or other officer of the Corporate Trust Office of the Guarantee Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended.
"Trust Securities" means the Common Securities and the Series A Capital Securities and Series B Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION
(a) This Series B Guarantee is subject to the provisions of the Trust Indenture Act that are required to be part of this Series B Guarantee and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Series B Guarantee limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control. If any provision of this Series B Guarantee modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the modified or excluded provision of the Trust Indenture Act shall be deemed to apply to this Series B Guarantee as so modified or excluded, as the case may be.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES
(a) The Guarantor shall provide the Guarantee Trustee (unless the Guarantee Trustee is otherwise the registrar of the Series B Capital Securities) with a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders") as of such date, (i) within 14 days after each record date for payment of Distributions (as defined in the Second Declaration), and (ii) at any other time within 30 days of receipt by the Guarantor of a written request for a List of Holders as of a date no more than 14 days before such List of Holders is given to the Guarantee Trustee; PROVIDED, HOWEVER, that the Guarantor shall not be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Guarantee Trustee by the Guarantor. The Guarantee Trustee may destroy any List of Holders previously given to it upon receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE GUARANTEE TRUSTEE
Within 60 days after the date hereof, and no later than the anniversary date hereof in each succeeding year, the Guarantee Trustee shall provide to the Holders such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS
The Guarantor shall provide to the Guarantee Trustee such documents, reports and information (if any) as are required by Section 314 and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. Delivery of such reports, information and documents to the Guarantee Trustee is for informational purposes only, and the Guarantee Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor's compliance with any of its covenants hereunder (as to which the Guarantee Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with the conditions precedent, if any, provided for in this Series B Guarantee that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER
(a) An "Event of Default" under this Series B Guarantee will occur upon the failure of the Guarantor to perform any of its payment or other obligations hereunder.
(b) The Holders of a Majority in Liquidation Amount of the Series B Capital Securities may, by vote, on behalf of all of the Holders, waive any past Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Series B Guarantee, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
SECTION 2.7 NOTICE OF EVENTS OF DEFAULT
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default with respect to this Series B Guarantee actually known to a Responsible Officer of the Guarantee Trustee, transmit by mail, first class postage prepaid, to all Holders, notices of
all such Events of Default, unless such Events of Default have been cured before the giving of such notice; PROVIDED, HOWEVER, that, except in the case of an Event of Default arising from the non-payment of any Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless the Guarantee Trustee shall have received written notice, or a Responsible Officer of the Guarantee Trustee charged with the administration of the Second Declaration shall have obtained actual knowledge, of such Event of Default.
SECTION 2.8 CONFLICTING INTERESTS
The Second Declaration shall be deemed to be specifically described in this Series B Guarantee for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Series B Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders of the Series B Capital Securities, and the Guarantee Trustee shall not transfer this Series B Guarantee to any Person except a Holder of Series B Capital Securities exercising his or her rights pursuant to Section 5.4 (b) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall automatically vest in any Successor Guarantee Trustee, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee shall enforce this Series B Guarantee for the benefit of the Holders of the Series B Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and after the curing or waiving of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Series B Guarantee, and no implied covenants shall be read into this Series B Guarantee against the Guarantee Trustee. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6(b)) and is actually known to a Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Series B Guarantee, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Series B Guarantee shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct or bad faith, except that:
(i) prior to the occurrence of any Event of Default and after the curing or waiving of all Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Series B Guarantee, and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Series B Guarantee, and no implied covenants or obligations shall be read into this Series B Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Guarantee Trustee and conforming to the requirements of this Series B Guarantee; PROVIDED, HOWEVER that in the case of any such certificates or opinions furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not on their face they conform to the requirements of this Series B Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that such Responsible Officer of the Guarantee Trustee or the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written direction of the Holders of a Majority in Liquidation Amount of the Series B Capital Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Series B Guarantee; and
(iv) no provision of this Series B Guarantee shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds is not reasonably assured to it under the terms of this Series B Guarantee, or security and indemnity, reasonably satisfactory to the Guarantee Trustee, against such risk or liability is not reasonably assured to it.
SECTION 3.2 CERTAIN RIGHTS OF THE GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be fully protected in acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debt security, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this Series B Guarantee shall be sufficiently evidenced by an Officer's Certificate.
(iii) Whenever, in the administration of this Series B Guarantee, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's Certificate of the Guarantor which, upon receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to any recording, filing or registration of any instrument or other writing (or any rerecording, refiling or reregistration thereof).
(v) The Guarantee Trustee may consult with counsel of its selection, and the advice or opinion of such counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion. Such counsel may be counsel to the Guarantor or any of its Affiliates and may include any of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Series B Guarantee from any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Series B Guarantee at the request or direction of any Holder, unless such Holder shall have provided to the Guarantee Trustee such security and indemnity, reasonably satisfactory to the Guarantee Trustee, against the costs, expenses (including attorneys' fees and expenses and the expenses of the Guarantee Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee; PROVIDED, HOWEVER, that nothing contained in this Section 3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Series B Guarantee.
(vii) The Guarantee Trustee shall have no obligation to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debt security,
note, other evidence of indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, nominees, custodians or attorneys, and the Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any such person appointed with due care by it hereunder.
(ix) Any action taken by the Guarantee Trustee or its agents hereunder shall bind the Holders of the Series B Capital Securities, and the signature of the Guarantee Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to the authority of the Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of this Series B Guarantee, both of which shall be conclusively evidenced by the Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series B Guarantee the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request instructions from the Holders of a Majority in Liquidation Amount of the Series B Capital Securities, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (C) shall be protected in conclusively relying on or acting in accordance with such instructions.
(xi) The Guarantee Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith, without negligence and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Series B Guarantee.
(b) No provision of this Series B Guarantee shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SERIES B GUARANTEE.
The recitals contained in this Series B Guarantee shall be taken as the statements of the Guarantor, and the Guarantee Trustee does not assume any responsibility for their correctness. The Guarantee Trustee makes no representation as to the validity or sufficiency of this Series B Guarantee.
ARTICLE IV
THE GUARANTEE TRUSTEE
SECTION 4.1 THE GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation or national association organized and doing business under the laws of the United States of America or any state thereof or of the District of Columbia, or other Person permitted by the Securities and Exchange Commission to act as an indenture trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state or District of Columbia authority. If such corporation, national association or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then, for the purposes of this Section 4.1(a)(ii), and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such corporation, national association or other Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set forth in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or removed without cause at any time by the Guarantor except during an Event of Default.
(b) The Guarantee Trustee shall not be removed in accordance with Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee shall hold office until a Successor Guarantee Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Guarantee Trustee has been appointed, subject to Section 4.1, and has accepted such appointment by an instrument in writing executed by such Successor Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.2 within 60 days after delivery of an instrument of removal or resignation, the Guarantee Trustee resigning or being removed may petition any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Series B Guarantee or removal or resignation of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the Guarantee Trustee all amounts owing to the Guarantee Trustee under Sections 8.2 and 8.3 accrued to the date of such termination, removal or resignation.
ARTICLE V
SERIES B GUARANTEE
SECTION 5.1 GUARANTEE.
(a) The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by the Issuer), as and when due, regardless of any defense (except defense of payment by the Issuer), right of set-off or counterclaim that the Issuer may have or assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Series B Guarantee and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor under this Series B Guarantee shall in no way be affected or impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer of any express or implied agreement, covenant, term or condition relating to the Series B Capital Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any portion of the Distributions, the price payable upon the redemption of the Series B Capital Securities, the Liquidation Distribution or any other sums payable under the terms of the Series B Capital Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Series B Capital Securities (other than an extension of time for the payment of the Distributions, the price payable upon the redemption of the Series B Capital Securities, the Liquidation Distribution or other sums payable that results from the extension of any interest payment period on the Debt Securities);
(c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Series B Capital Securities, or any action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Series B Capital Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 4.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) The Holders of a Majority in Liquidation Amount of the Series B Capital Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Series B Guarantee or to direct the exercise of any trust or power conferred upon the Guarantee Trustee under this Series B Guarantee; PROVIDED, HOWEVER, that (subject to Sections 3.1 and 3.2) the Guarantee Trustee shall have the right to decline to follow any such direction if the Guarantee Trustee shall determine that the actions so directed would be unjustly prejudicial to the Holders not taking part in such direction or if the Guarantee Trustee being advised by legal counsel determines that the action or proceeding so directed may not lawfully be taken or if the Guarantee Trustee in good faith by its
board of directors or trustees, executive committee or a trust committee of directors or trustees and/or Responsible Officers shall determine that the action or proceeding so directed would involve the Guarantee Trustee in personal liability.
(b) Any Holder of Series B Capital Securities may institute a legal proceeding directly against the Guarantor to enforce the Guarantee Trustee's rights under this Series B Guarantee, without first instituting a legal proceeding against the Issuer, the Guarantee Trustee or any other Person. The Guarantor waives any right or remedy to require that any such action be brought first against the Issuer, the Guarantee Trustee or any other Person before so proceeding directly against the Guarantor.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Series B Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders of Series B Capital Securities against the Issuer in respect of any amounts paid to such Holders by the Guarantor under this Series B Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not (except to the extent required by applicable provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Series B Guarantee, if, after giving effect to any such payment, any amounts are due and unpaid under this Series B Guarantee. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Series B Capital Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Series B Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Series B Capital Securities remain outstanding, if at any time (1) there shall have occurred and be continuing a Default or an Event of Default, (2) the Guarantor shall be in default with respect to its payment of any obligations under this Series B Guarantee or (3) the Guarantor shall have given notice of its election to defer payments of interest on the Debt Securities by extending the interest payment period as provided in Section 2.08 of the Indenture and such period, or any extension thereof, shall have commenced and be continuing, then the Guarantor may not (x) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Guarantor's capital stock, (y) make any payment of principal of or interest or premium, if any, or interest or Liquidated Damages, if any, on or repay, repurchase or redeem any debt securities of the Guarantor that rank in all respects PARI PASSU with or junior in interest to the Debt Securities or (z) make any payment under any guarantees of the Guarantor that rank in all respects PARI PASSU with or junior in interest to this Series B Guarantee (other than (i) repurchases, redemptions or other acquisitions of shares of capital stock of the Guarantor (A) in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors, or consultants, (B) in connection with a dividend reinvestment or stockholder stock purchase plan or (C) in connection with the issuance of capital stock of the Guarantor (or securities convertible into or exercisable for such capital stock), as consideration in an acquisition transaction entered into prior to the occurrence of (1), (2) or (3) above, (ii) as a result of any exchange or conversion of any class or series of the Guarantor's capital stock (or any capital stock of a subsidiary of the Guarantor) for any class or series of the Guarantor's capital stock or of any class or series of the Guarantor's indebtedness for any class or series of the Guarantor's capital stock, (iii) the purchase of fractional interests in shares of the Guarantor's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (iv) any declaration of a dividend in connection with any stockholder's rights plan, or the issuance of rights, stock or other property under any stockholder's rights plan, or the redemption or repurchase of rights pursuant thereto, or (v) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks PARI PASSU with or junior in interest to such stock).
SECTION 6.2 RANKING.
This Series B Guarantee will constitute an unsecured obligation of the Guarantor and will rank subordinate and junior in right of payment to all present and future Senior Indebtedness (as defined in the Indenture) to the same extent and in the same manner that the Debt Securities are subordinated to Senior Indebtedness pursuant to the Indenture, it being understood that the terms of Article XV of the Indenture shall apply to the obligations of the Guarantor. By their acceptance thereof, each Holder of Series B Capital Securities agrees to the foregoing provisions of this Series B Guarantee and the other terms set forth herein.
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION.
This Series B Guarantee shall terminate as to the Series B Capital Securities upon (i) full payment of the price payable upon redemption of all Series B Capital Securities then outstanding, (ii) the distribution of all of the Debt Securities to the Holders of all of the Series B Capital Securities, or (iii) full payment of the amounts payable in accordance with the Second Declaration upon dissolution of the Issuer. This Series B Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any Holder of Series B Capital Securities
must restore payment of any sums paid under the Series B Capital Securities or under this Series B Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Guarantor or any Covered Person for any loss, damage or claim incurred by reason of any act or omission of such Indemnified Person in good faith in accordance with this Series B Guarantee and in a manner that such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Series B Guarantee or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence, willful misconduct or bad faith with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Issuer or the Guarantor and upon such information, opinions, reports or statements presented to the Issuer or the Guarantor by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who, if selected by such Indemnified Person, has been selected with reasonable care by such Indemnified Person, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Series B Capital Securities might properly be paid.
SECTION 8.2 INDEMNIFICATION.
(a) The Guarantor agrees to indemnify each Indemnified Person for, and to hold each Indemnified Person harmless against, any and all loss, liability, damage, claim or expense incurred without negligence, willful misconduct or bad faith on the part of the Indemnified Person, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including but not limited to the costs and expenses (including reasonable legal fees and expenses) of the Indemnified Person defending itself against, or investigating, any claim or liability in connection with the exercise or performance of any of the Indemnified Person's powers or duties hereunder. The obligation to indemnify as set forth in this Section 8.2 shall survive the resignation or removal of the Guarantee Trustee and the termination of this Series B Guarantee.
(b) Promptly after receipt by an Indemnified Person under this
Section 8.2 of notice of the commencement of any action, such Indemnified Person
will, if a claim in respect thereof is to be made against the Guarantor under
this Section 8.2, notify the Guarantor in writing of the commencement thereof;
but the failure so to notify the Guarantor (i) will not relieve the Guarantor
from liability under paragraph (a) above unless and to the extent that the
Guarantor did not otherwise learn of such action and such failure results in the
forfeiture by the
Guarantor of substantial rights and defenses and (ii) will not, in any event, relieve the Guarantor from any obligations to any Indemnified Person other than the indemnification obligation provided in paragraph (a) above. The Guarantor shall be entitled to appoint counsel of the Guarantor's choice at the Guarantor's expense to represent the Indemnified Person in any action for which indemnification is sought (in which case the Guarantor shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the Indemnified Person or Persons except as set forth below); PROVIDED, HOWEVER, that such counsel shall be satisfactory to the Indemnified Person. Notwithstanding the Guarantor's election to appoint counsel to represent the Indemnified Person in any action, the Indemnified Person shall have the right to employ separate counsel (including local counsel), and the Guarantor shall bear the reasonable fees, costs and expenses of such separate counsel, if (i) the use of counsel chosen by the Guarantor to represent the Indemnified Person would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Person and the Guarantor and the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Persons which are different from or additional to those available to the Guarantor, (iii) the Guarantor shall not have employed counsel satisfactory to the Indemnified Person to represent the Indemnified Person within a reasonable time after notice of the institution of such action or (iv) the Guarantor shall authorize the Indemnified Person to employ separate counsel at the expense of the Guarantor. The Guarantor will not, without the prior written consent of the Indemnified Persons, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Persons are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Indemnified Person from all liability arising out of such claim, action, suit or proceeding.
SECTION 8.3 COMPENSATION; REIMBURSEMENT OF EXPENSES.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such compensation for all services rendered by it hereunder as the parties shall agree to from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon request for all reasonable expenses, disbursements and advances incurred or made by it in accordance with any provision of this Series B Guarantee (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the negligence, willful misconduct or bad faith of the Guarantee Trustee.
The provisions of this Section 8.3 shall survive the resignation or removal of the Guarantee Trustee and the termination of this Series B Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Series B Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Series B Capital Securities then outstanding. Except in connection with any merger or consolidation of the Guarantor with or into another entity or any sale, transfer or lease of the Guarantor's assets to another entity, in each case to the extent permitted under the Indenture, the Guarantor may not assign its rights or delegate its obligations under this Series B Guarantee without the prior approval of the Holders of a Majority in Liquidation Amount of the Series B Capital Securities.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not adversely affect the powers, preferences, rights or interests of Holders of the Series B Capital Securities in any material respect (in which case no approval of Holders will be required), this Series B Guarantee may be amended only with the prior approval of the Holders of a Majority in Liquidation Amount of the Series B Capital Securities. The provisions of the Second Declaration with respect to amendments thereof shall apply equally with respect to amendments of the Series B Guarantee.
SECTION 9.3 NOTICES.
All notices provided for in this Series B Guarantee shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Guarantee Trustee, at the Guarantee Trustee's mailing address set forth below (or such other address as the Guarantee Trustee may give notice of to the Holders of the Series B Capital Securities):
Wilmington Trust Company 1100 North Market Street Wilmington, Delaware 19890-1626 Attention: Corporate Capital Markets Telecopy: (302) 636-4145 Telephone: (302) 636-6470;
(b) if given to the Guarantor, at the Guarantor's mailing address set forth below (or such other address as the Guarantor may give notice of to the Holders of the Series B Capital Securities and to the Guarantee Trustee):
Dime Community Bancshares, Inc. 209 Havemeyer Street
Brooklyn, New York 11211 Attention: Lance Bennett, Esq.
Telecopy: (718) 782-7535
Telephone: (718) 782-6200; or
(c) if given to any Holder of the Series B Capital Securities, at the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 BENEFIT.
This Series B Guarantee is solely for the benefit of the Holders of the Series B Capital Securities and, subject to Section 3.1(a), is not separately transferable from the Series B Capital Securities.
SECTION 9.5 GOVERNING LAW.
THIS SERIES B GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION 9.6 COUNTERPARTS.
This Series B Guarantee may contain more than one counterpart of the signature page and this Series B Guarantee may be executed by the affixing of the signature of the Guarantor and the Series B Guarantee Trustee to any of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page.
THIS SERIES B GUARANTEE is executed as of the day and year first above written.
Dime Community Bancshares, Inc., as Guarantor
By:/s/ Kenneth J. Mahon
--------------------------------
Kenneth J. Mahon
Executive Vice President and
Chief Financial Officer
|
WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By: /s/ Mary St. Amand
--------------------------------
Mary St. Amand
Assistant Vice President
|
REGISTRATION RIGHTS AGREEMENT
Dated as of March 12, 2004
by and among
DIME COMMUNITY BANCSHARES, INC.
DIME COMMUNITY CAPITAL TRUST I
and
SANDLER O'NEILL & PARTNERS, L.P.,
as Initial Purchaser
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and entered into as of March 12, 2004 by and among DIME COMMUNITY BANCSHARES, INC., a Delaware corporation (the "COMPANY"), DIME COMMUNITY CAPITAL TRUST I, a statutory trust formed under the laws of the state of Delaware (the "TRUST"), and SANDLER O'NEILL & PARTNERS, L.P. (the "INITIAL PURCHASER").
This Agreement is made pursuant to the Purchase Agreement dated March 12, 2004 (the "PURCHASE AGREEMENT"), by and among the Company, as issuer of the 7.0% Junior Subordinated Deferrable Interest Debt Securities due April 14, 2034, Series A (the "DEBT SECURITIES"), the Trust and the Initial Purchaser, which provides for, among other things, the sale by the Trust to the Initial Purchaser of 70,000 of the Trust's 7.0% Capital Securities, Series A, liquidation amount $1,000 per Capital Security (the "CAPITAL SECURITIES"), the proceeds of which will be used by the Trust, together with the proceeds from the sale of the Trust's Common Securities to the Company, to purchase the Debt Securities. The Capital Securities, together with the Debt Securities and the Company's guarantee agreement in respect of the Capital Securities (the "GUARANTEE"), are collectively referred to as the "Securities." In order to induce the Initial Purchaser to enter into the Purchase Agreement, the Company and the Trust have agreed to provide to the Initial Purchaser and its direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized defined terms shall have the following meanings:
"ADDITIONAL DISTRIBUTIONS" shall have the meaning set forth in
Section 2(e) hereof.
"ADVICE" shall have the meaning set forth in the last paragraph of Section 3 hereof.
"AFFILIATE" shall have the same meaning as given to that term in Rule 405 under the Securities Act or any successor rule thereunder.
"APPLICABLE PERIOD" shall have the meaning set forth in
Section 3(u) hereof.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday, or a day on which banking institutions in New York, New York or Wilmington, Delaware are authorized or required by law or executive order to remain closed.
"CLOSING TIME" shall mean the Closing Time as defined in the Purchase Agreement.
"COMPANY" shall have the meaning set forth in the preamble to this Agreement and also includes the Company's successors and permitted assigns.
"DEBENTURES" shall collectively mean the Debt Securities and the Exchange Debt Securities.
"DECLARATION" or "DECLARATION OF TRUST" shall mean the Amended and Restated Declaration of Trust of Dime Community Capital Trust I, dated as of the Closing Time, by the trustees named therein and the Company as sponsor.
"DEPOSITORY" shall mean The Depository Trust Company, or any other depository appointed by the Trust; PROVIDED, HOWEVER, that such depositary must have an address in the Borough of Manhattan, in The City of New York.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 2(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended from time to time.
"EXCHANGE OFFER" shall mean the offer by the Company and the Trust to the Holders to exchange all of the Registrable Securities (other than Private Exchange Securities) for a like amount of Exchange Securities pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer registration statement on SEC Form S-4 (or, if applicable, on another appropriate form), and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein, all exhibits thereto and all documents incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section 2(a) hereof.
"EXCHANGE SECURITIES" shall mean (i) with respect to the Debt Securities, the 7.0% Junior Subordinated Deferrable Interest Debt Securities due April 14, 2034, Series B (the "EXCHANGE DEBENTURES") containing terms substantially identical to the Debt Securities (except that they will not contain terms with respect to the transfer restrictions under the Securities Act (other than requiring minimum transfers thereof to be in blocks of $100,000 aggregate principal amount and multiples of $1,000 in excess thereof) and will not provide for any Liquidated Damages thereon), (ii) with respect to the Capital Securities, the Trust's 7.0% Capital Securities, Series B, liquidation amount $1,000 per Capital Security (the "EXCHANGE CAPITAL SECURITIES") containing terms substantially identical to the Capital Securities (except they will not contain terms with respect to transfer restrictions under the Securities Act (other than requiring minimum transfers thereof to be in blocks of $100,000 aggregate liquidation amount and multiples of $1,000 in excess thereof) and will not provide for any increase in Additional Distributions thereon) and (iii) with respect to the Capital Securities Guarantee, the Company's guarantee agreement in respect of the Exchange Capital Securities (the "EXCHANGE CAPITAL SECURITIES GUARANTEE") containing terms substantially identical to the Capital Securities Guarantee.
"HOLDER" shall mean the Initial Purchaser, for so long as it owns any Registrable Securities, and each of its successors, assigns and direct and indirect transferees who become registered owners of Registrable Securities under the Indenture or Declaration of Trust.
"INDENTURE" shall mean the Indenture relating to the Debt Securities and the Exchange Debentures, dated as of the Closing Time, between the Company, as issuer, and Wilmington Trust Company, as trustee, as the same may be amended from time to time in accordance with the terms thereof.
"INITIAL PURCHASER" shall have the meaning set forth in the preamble to this Agreement.
"INSPECTORS" shall have the meaning set forth in Section 3(o) hereof.
"ISSUE DATE" shall mean March 19, 2004, the date of original issuance of the Securities.
"LIQUIDATED DAMAGES" shall have the meaning set forth in
Section 2(e) hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate liquidation amount of outstanding Capital Securities.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in Section 3(u) hereof.
"PERSON" shall mean an individual, partnership, corporation, trust or unincorporated organization, limited liability company, or a government or agency or political subdivision thereof.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section 2(a) hereof.
"PRIVATE EXCHANGE SECURITIES" shall have the meaning set forth in Section 2(a) hereof.
"PROSPECTUS" shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to a prospectus, including post-effective amendments, and in each case including all documents incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble to this Agreement.
"RECORDS" shall have the meaning set forth in Section 3(o) hereof.
"REGISTRABLE SECURITIES" shall mean the Securities and, if issued, the Private Exchange Securities; PROVIDED, HOWEVER, that Securities or Private Exchange Securities, as the
case may be, shall cease to be Registrable Securities when (i) a Registration
Statement with respect to such Securities or Private Exchange Securities for the
exchange or resale thereof, as the case may be, shall have been declared
effective under the Securities Act and such Securities or Private Exchange
Securities, as the case may be, shall have been disposed of pursuant to such
Registration Statement, (ii) such Securities or Private Exchange Securities, as
the case may be, shall have been sold to the public pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under the Securities Act
or are eligible to be sold without restriction as contemplated by Rule 144(k),
(iii) such Securities or Private Exchange Securities, as the case may be, shall
have ceased to be outstanding or (iv) with respect to the Securities, such
Securities shall have been exchanged for Exchange Securities upon consummation
of the Exchange Offer and are thereafter freely tradeable by the holder thereof
(other than an Affiliate of the Company).
"REGISTRATION EXPENSES" shall mean any and all expenses incident to performance of or compliance by the Company with this Agreement, including without limitation: (i) all SEC or National Association of Securities Dealers, Inc. (the "NASD") registration and filing fees, including, if applicable, the fees and expenses of any "qualified independent underwriter" (and its counsel) that is required to be retained by any Holder of Registrable Securities in accordance with the rules and regulations of the NASD, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of one counsel for all underwriters or Holders as a group in connection with blue sky qualification of any of the Exchange Securities or Registrable Securities) and compliance with the rules of the NASD, (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus and any amendments or supplements thereto, and in preparing or assisting in preparing, printing and distributing any underwriting agreements, securities sales agreements and other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) the fees and disbursements of counsel for the Company and of the independent certified public accountants of the Company, including the expenses of any "cold comfort" letters required by or incident to the performance of and compliance with this Agreement, (vi) the reasonable fees and expenses of the Trustees and their counsel and any exchange agent or custodian, and (vii) the reasonable fees and expenses of any special experts retained by the Company in connection with any Registration Statement.
"REGISTRATION STATEMENT" shall mean any registration statement of the Company and the Trust which covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement, and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all documents incorporated by reference therein.
"RULE 144(K) PERIOD" shall mean the period of two years (or such shorter period as may hereafter be referred to in Rule 144(k) under the Securities Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in the preamble to this Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from time to time.
"SHELF REGISTRATION" shall mean a registration effected pursuant to Section 2(b) hereof.
"SHELF REGISTRATION EVENT" shall have the meaning set forth in
Section 2(b) hereof.
"SHELF REGISTRATION EVENT DATE" shall have the meaning set forth in Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement of the Company and the Trust pursuant to the provisions of Section 2(b) hereof which covers all of the Registrable Securities or all of the Private Exchange Securities, as the case may be, on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all documents incorporated by reference therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time to time.
"TRUSTEES" shall mean any and all trustees under the Declaration, the Indenture, the Capital Securities Guarantee or the Exchange Capital Securities Guarantee.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) EXCHANGE OFFER. Except as set forth in Section 2(b) below,
the Company and the Trust shall, for the benefit of the Holders, at the
Company's cost, use their best efforts to (i) cause to be filed with the SEC
within 150 days after the Issue Date an Exchange Offer Registration Statement on
an appropriate form under the Securities Act relating to the Exchange Offer,
(ii) cause such Exchange Offer Registration Statement to be declared effective
under the Securities Act by the SEC not later than the date which is 180 days
after the Issue Date, and (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders. Promptly after the effectiveness of the Exchange Offer Registration
Statement, the Company and the Trust shall commence the Exchange Offer, it being
the objective of such Exchange Offer to enable each Holder eligible and electing
to exchange Registrable Securities for a like principal amount of Exchange
Debentures or a like liquidation amount of Exchange Capital Securities, together
with the Exchange Capital Securities Guarantee, as applicable (provided that
such Holder (w) is not an Affiliate of the Trust or the Company, (x) is not a
broker-dealer tendering Registrable Securities acquired directly from the Trust
or the Company, (y) acquires the Exchange Securities in the ordinary course of
such Holder's business and (z) has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing the
Exchange Securities), to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions under the Securities Act and
under state securities or blue sky laws (other than requiring minimum transfers
in blocks having an aggregate principal or liquidation amount, as the case may
be, of $100,000 and multiples of $1,000 in excess thereof).
In connection with the Exchange Offer, the Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (ii) keep the Exchange Offer open for acceptance for a period of not less than 30 days after the date notice thereof is mailed to the Holders (or longer if required by applicable law) (such period referred to herein as the "EXCHANGE PERIOD");
(iii) utilize the services of the Depository for the Exchange Offer with respect to Capital Securities represented by a global certificate;
(iv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day of the Exchange Period, by sending to the institution specified in the notice to Holders, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the amount of Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in the Exchange Offer will remain outstanding and continue to accrue interest or accumulate distributions, as the case may be, but will not retain any rights under this Agreement (except in the case of the Initial Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to the Exchange Offer.
If the Initial Purchaser determines upon advice of its outside counsel that it is not eligible to participate in the Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold allotment in the initial placement, as soon as practicable upon receipt by the Company and the Trust of a written request from the Initial Purchaser, the Company and the Trust, as applicable, shall issue and deliver to the Initial Purchaser in exchange (the "PRIVATE EXCHANGE") for the Securities held by the Initial Purchaser a like liquidation amount of Exchange Capital Securities of the Trust or, in the event the Trust is liquidated and Debt Securities are distributed, a like principal amount of the Exchange Debentures of the Company, together with the Exchange Capital Securities Guarantee, in each case that are identical (except that such securities may bear a customary legend with respect to restrictions on transfer pursuant to the Securities Act) to the Exchange Securities (the "PRIVATE EXCHANGE SECURITIES") and which are issued pursuant to the Indenture or the Declaration (which provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture or the Declaration, as applicable (other than requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000 and multiples of $1,000 in excess thereof), and that the Exchange Securities, the Private Exchange Securities and the Securities will vote and consent together on all matters as one class and that none of the Exchange Securities, the Private Exchange Securities or the Securities will have the right to vote
or consent as a separate class on any matter). The Private Exchange Securities shall be of the same series as the Exchange Securities, and the Company and the Trust will seek to cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private Exchange Securities as for the Exchange Securities issued pursuant to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer and, if applicable, the Private Exchange, the Company and the Trust, as the case requires, shall:
(i) accept for exchange all Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange;
(ii) deliver, or cause to be delivered, to the applicable Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Company and the Trust; and
(iii) issue, and cause the applicable Trustee under the Indenture or the Declaration, as applicable, to promptly authenticate and deliver to each Holder, new Exchange Securities or Private Exchange Securities, as applicable, equal in principal amount to the principal amount of the Debt Securities or equal in liquidation amount to the liquidation amount of the Capital Securities as are surrendered by such Holder, and will execute, and cause the applicable Trustee to execute, the Exchange Capital Securities Guarantee.
Distributions on each Exchange Capital Security and interest or distributions on each Exchange Debenture and Private Exchange Security issued pursuant to the Exchange Offer and in the Private Exchange will accumulate or accrue from the last date on which a distribution or interest was paid on the Capital Security or the Subordinated Debenture surrendered in exchange therefor or, if no distribution or interest has been paid on such Capital Security or Subordinated Debenture, from the Issue Date. To the extent not prohibited by any law or applicable interpretation of the staff of the SEC, the Company and the Trust shall use their best efforts to complete the Exchange Offer as provided above, and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions other than the conditions referred to in Section 2(b)(i) and (ii) below and those conditions that are customary in similar exchange offers. Each Holder of Registrable Securities who wishes to exchange such Registrable Securities for Exchange Securities in the Exchange Offer will be required to make certain customary representations in connection therewith, including, in the case of any Holder of Capital Securities, representations that (i) it is not an Affiliate of the Trust or the Company, (ii) it is not a broker-dealer tendering Registrable Securities acquired directly from the Trust or Company, (iii) the Exchange Securities to be received by it were acquired in the ordinary course of its business and (iv) at the time of the Exchange Offer, it has no arrangements or understandings with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Capital Securities. The Company and the Trust shall inform the Initial Purchaser, after consultation with the applicable Trustees, of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchaser shall have the right to contact such Holders in order to facilitate the tender of Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply, MUTATIS MUTANDIS, solely with respect to Registrable Securities that are Private Exchange Securities and Exchange Securities held by Participating Broker-Dealers, and the Company and the Trust shall have no further obligation to register the Registrable Securities (other than Private Exchange Securities) held by any Holder pursuant to Section 2(b) of this Agreement.
(b) SHELF REGISTRATION. In the event that (i) the Company or
the Trust reasonably determines, after conferring with counsel (which may be
in-house counsel), that the Exchange Offer Registration provided in Section 2(a)
above is not available under applicable law and regulations and currently
prevailing interpretations of the staff of the SEC, (ii) the Company shall
determine in good faith that there is a reasonable likelihood that, or a
material uncertainty exists as to whether, consummation of the Exchange Offer
would result in (x) the Trust becoming subject to United States federal income
tax with respect to income received or accrued on the Debentures, (y) the
interest payable by the Company on the Debentures not being deductible by the
Company for United States federal income tax purposes or (z) the Trust becoming
subject to more than a DE MINIMIS amount of other taxes, duties or governmental
charges, (iii) the Exchange Offer Registration Statement is not declared
effective within 180 days of the Issue Date or (iv) upon the request of the
Initial Purchaser with respect to any Registrable Securities held by it, if the
Initial Purchaser is not permitted, in the reasonable opinion of Thacher
Proffitt & Wood LLP, pursuant to applicable law or applicable interpretations of
the staff of the SEC, to participate in the Exchange Offer and thereby receive
securities that are freely tradeable without restriction under the Securities
Act and applicable blue sky or state securities laws (any of the events
specified in (i), (ii), (iii) or (iv) being a "SHELF REGISTRATION EVENT," and
the date of occurrence thereof, the "SHELF REGISTRATION EVENT DATE"), then in
addition to or in lieu of conducting the Exchange Offer contemplated by Section
2(a), as the case may be, the Company and the Trust shall, at their cost, use
their best efforts to cause to be filed as promptly as practicable after such
Shelf Registration Event Date, as the case may be, and, in any event, within 45
days after such Shelf Registration Event Date (provided that in no event shall
such filing date be required to be earlier than 75 days after the Issue Date), a
Shelf Registration Statement providing for the sale by the Holders of all of the
Registrable Securities, and shall use their best efforts to have such Shelf
Registration Statement declared effective by the SEC as soon as practicable. No
Holder of Registrable Securities shall be entitled to include any of its
Registrable Securities in any Shelf Registration pursuant to this Agreement
unless and until such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and furnishes to the
Company and the Trust in writing, within 15 days after receipt of a request
therefor, such information as the Company and the Trust may, after conferring
with counsel with regard to information relating to Holders that would be
required by the SEC to be included in such Shelf Registration Statement or
Prospectus included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company and
the Trust all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company and the Trust agree to use their best efforts to keep the Shelf Registration Statement continuously effective and usable for resales for (a) the Rule 144(k) Period in the case of a Shelf Registration Statement filed pursuant to Section 2(b)(i), (ii) or (iii)
or (b) 180 days in the case of a Shelf Registration Statement filed pursuant to
Section 2(b)(iv) (subject in each case to extension pursuant to the last
paragraph of Section 3 hereof), or for such shorter period which will terminate
when all of the Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be Registrable
Securities (the "EFFECTIVENESS PERIOD"). The Company and the Trust shall not
permit any securities other than Registrable Securities to be included in the
Shelf Registration. The Company and the Trust will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus which is a part of the Shelf
Registration Statement, notify each such Holder when the Shelf Registration has
become effective and take certain other actions as are required to permit
certain unrestricted resales of the Registrable Securities. The Company and the
Trust further agree, if necessary, to supplement or amend the Shelf Registration
Statement, if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement
or by the Securities Act or by any other rules and regulations thereunder for
shelf registrations, and the Company and the Trust agree to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) EXPENSES. The Company, as issuer of the Debt Securities, shall pay all Registration Expenses in connection with any Registration Statement filed pursuant to Section 2(a) and/or 2(b) hereof and will reimburse the Initial Purchaser for the reasonable fees and disbursements of counsel for the Initial Purchaser, incurred in connection with the Exchange Offer and, if applicable, the Private Exchange, and any other single counsel designated in writing by the Majority Holders to act as counsel for the Holders of the Registrable Securities in connection with a Shelf Registration Statement, which other counsel shall be reasonably satisfactory to the Company. Except as provided herein, each Holder shall pay all expenses of its counsel, underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) EFFECTIVE REGISTRATION STATEMENT. An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; PROVIDED, HOWEVER, that if, after it has been declared effective, the offering of Registrable Securities pursuant to such Exchange Offer Registration Statement or Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Exchange Offer Registration Statement or Shelf Registration Statement will be deemed not to have been effective during the period of such interference, until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. The Company and the Trust will be deemed not to have used their best efforts to cause the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, to become, or to remain, effective during the requisite period if either of them voluntarily takes any action that would result in any such Registration Statement not being declared effective or that would result in the Holders of Registrable Securities covered thereby not being able to exchange or offer and sell such Registrable Securities during that period, unless such action is required by applicable law.
(e) LIQUIDATED DAMAGES AND ADDITIONAL DISTRIBUTIONS. In the event that:
(i) neither the Exchange Offer Registration Statement is filed with the SEC on or prior to the 150th day after the Issue Date nor a Shelf Registration Statement is filed with the SEC on or prior to the 45th day after the Shelf Registration Event Date in respect of a Shelf Registration Event attributable to any of the events set forth in Sections 2(b)(i), (ii) and (iii) (provided that in no event shall such filing date be required to be earlier than 75 days after the Issue Date), then commencing on the day after the applicable required filing date, liquidated damages ("LIQUIDATED DAMAGES") shall accrue on the principal amount of the Debt Securities, and additional distributions ("ADDITIONAL DISTRIBUTIONS") shall accumulate on the liquidation amount of the Trust Securities (as such term is defined in the Declaration), each at a rate of 25 basis points per annum; or
(ii) neither the Exchange Offer Registration Statement is
declared effective by the SEC on or prior to the 180th day after the
Issue Date nor a Shelf Registration Statement is declared effective by
the SEC on or prior to the later of (A) the 40th day after the date
such Shelf Registration Statement was required to be filed and (B) the
180th day after the Issue Date, in respect of a Shelf Registration
Event attributable to any of the events set forth in Sections 2(b)(i),
(ii) and (iii), then, commencing on the day after the applicable
required effectiveness date, Liquidated Damages shall accrue on the
principal amount of the Debt Securities, and Additional Distributions
shall accumulate on the liquidation amount of the Trust Securities,
each at a rate of 25 basis points per annum; or
(iii) (A) the Trust has not exchanged Exchange Capital Securities for all Capital Securities or the Company has not exchanged Exchange Debentures for all Debt Securities, in each case validly tendered during the Exchange Period, or executed the Exchange Capital Securities Guarantee in respect of the Exchange Capital Securities, in accordance with the terms of the Exchange Offer on or prior to the 45th day after the date on which the Exchange Offer Registration Statement was declared effective or (B) if applicable, the Shelf Registration Statement in respect of a Shelf Registration Event attributable to any of the events set forth in Sections 2(b)(i), (ii) and (iii) has been declared effective and such Shelf Registration Statement ceases to be effective or usable for resales (whether as a result of an event contemplated by Section 3(e) or otherwise) at any time prior to the expiration of the Rule 144(k) Period (other than after such time as all Securities have been disposed of thereunder or otherwise cease to be Registered Securities), then Liquidated Damages shall accrue on the principal amount of Debt Securities, and Additional Distributions shall accumulate on the liquidation amount of the Trust Securities, each at a rate of 25 basis points per annum commencing on (x) the 46th day after such effective date, in the case of (A) above, or (y) the day such Shelf Registration Statement ceases to be effective or usable for resales, in the case of (B) above;
PROVIDED, HOWEVER, that neither the Liquidated Damages rate on the Debt Securities, nor the Additional Distribution rate on the liquidation amount of the Trust Securities, may exceed in the aggregate 25 basis points per annum; PROVIDED, FURTHER, HOWEVER, that (1) upon the filing of the Exchange Offer Registration Statement or a Shelf Registration Statement (in the case of clause
(i) above), (2) upon the effectiveness of the Exchange Offer Registration Statement or a Shelf Registration Statement (in the case of clause (ii) above) or (3) upon the exchange of Exchange Capital Securities and Exchange Debentures for all Capital Securities and Debt Securities validly tendered and execution of the Exchange Capital Securities Guarantee (in the case of clause (iii)(A) above) or at such time as the Shelf Registration Statement that had ceased to remain effective or usable for resales again becomes effective and usable for resales (in the case of clause (iii)(B) above), Liquidated Damages on the principal amount of the Debt Securities and Additional Distributions on the liquidation amount of the Trust Securities as a result of such clause (or the relevant subclause thereof) shall cease to accrue and accumulate, as the case may be.
Any amounts of Liquidated Damages and Additional Distributions due pursuant to Section 2(e)(i), (ii) or (iii) above will be payable in cash on the next succeeding January 15, April 15, July 15 or October 15 as the case may be, to Holders on the relevant record dates for the payment of interest and distributions pursuant to the Indenture and the Declaration, respectively.
(f) SPECIFIC ENFORCEMENT. Without limiting the remedies available to the Holders, the Company and the Trust acknowledge that any failure by the Company or the Trust to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Holders for which there is no adequate remedy at law, that it would not be possible to measure damages for such injuries precisely and that, in the event of any such failure, any Holder may obtain such relief as may be required to specifically enforce the Company's and the Trust's obligations under Section 2(a) and Section 2(b) hereof.
(g) DISTRIBUTION OF DEBT SECURITIES. Notwithstanding any other provisions of this Agreement, in the event that Debt Securities are distributed to holders of Capital Securities in liquidation of the Trust pursuant to the Declaration, (i) all references in this Section 2 and in Section 3 to Securities, Registrable Securities and Exchange Securities shall not include the Capital Securities and Capital Securities Guarantee or the Exchange Capital Securities and Exchange Capital Securities Guarantee issued or to be issued in exchange therefor in the Exchange Offer and (ii) all requirements for any action to be taken by the Trust in this Section 2 and in Section 3 shall cease to apply and all requirements for any action to be taken by the Company in this Section 2 and in Section 3 shall apply to the Debt Securities and Exchange Debentures issued or to be issued in exchange therefor in the Exchange Offer.
3. REGISTRATION PROCEDURES. In connection with the obligations of the Company and the Trust with respect to the Registration Statements pursuant to Sections 2(a) and 2(b) hereof, the Company and the Trust shall use their best efforts to:
(a) prepare and file with the SEC a Registration Statement or Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within the relevant time period specified in Section 2 hereof on the appropriate form under the Securities Act, which form (i) shall be selected by the Company and the Trust, (ii) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the selling Holders thereof and, in the case of an Exchange Offer, be available for the exchange of Registrable Securities and (iii) shall comply as to form in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith; and use their best efforts to cause such Registration Statement to become effective and remain effective (and, in the case of a Shelf Registration Statement, usable for resales) in accordance with Section 2 hereof; PROVIDED, HOWEVER, that if (1) such filing is pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities, before filing any such Registration Statement or Prospectus or any amendments or supplements thereto, the Company and the Trust shall furnish to and afford the Holders of the Registrable Securities and each such Participating Broker-Dealer, as the case may be, covered by such Registration Statement, their counsel and the managing underwriters, if any, a reasonable opportunity (not to exceed seven Business Days) to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed. The Company and the Trust shall not file any Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Holders must be afforded an opportunity to review prior to the filing of such document if the Majority Holders or such Participating Broker-Dealer, as the case may be, their counsel or the managing underwriters, if any, shall reasonably object in a timely manner;
(b) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the Effectiveness Period or the Applicable Period, as the case may be; and cause each Prospectus to be supplemented, if so determined by the Company or the Trust or requested by the SEC, by any required prospectus supplement and as so supplemented to be filed pursuant to Rule 424 (or any similar provision then in force) under the Securities Act, and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder applicable to it with respect to the disposition of all securities covered by each Registration Statement during the Effectiveness Period or the Applicable Period, as the case may be, in accordance with the intended method or methods of distribution by the selling Holders thereof described in this Agreement (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of Registrable Securities included in the Shelf Registration Statement, at least three Business Days prior to filing, that a Shelf Registration Statement with respect to the Registrable Securities is being filed and advising such Holder that the distribution of Registrable Securities will be made in accordance with the method selected by the Majority Holders; and (ii) furnish to each Holder of Registrable Securities included in the Shelf Registration Statement and to each underwriter of an underwritten offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto, and such other documents as such Holder or underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; and (iii) consent to the use of the Prospectus or any amendment or supplement thereto by each of the selling Holders of Registrable Securities included in the Shelf Registration Statement in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, register or qualify the Registrable Securities under all applicable state securities or "blue sky" laws of such jurisdictions by the time the applicable Registration Statement is declared effective by the SEC as any Holder of Registrable Securities covered by a Registration Statement and each underwriter of an underwritten offering of Registrable Securities shall reasonably request in writing in advance of such date of effectiveness, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder and underwriter to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder; PROVIDED, HOWEVER, that the Company and the Trust shall not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (ii) file any general consent to service of process in any jurisdiction where it would not otherwise be subject to such service of process or (iii) subject itself to taxation in any such jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating Broker-Dealers from whom the Company or the Trust has received prior written notice that they will be utilizing the Prospectus contained in the Exchange Offer Registration Statement as provided in Section 3(u) hereof, are seeking to sell Exchange Securities and are required to deliver Prospectuses, promptly notify each Holder of Registrable Securities, or such Participating Broker-Dealers, as the case may be, their counsel and the managing underwriters, if any, and promptly confirm such notice in writing (i) when a Registration Statement has become effective and when any post-effective amendments thereto become effective, (ii) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement or Prospectus or for additional information after the Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the qualification of the Registrable Securities or the Exchange Securities to be offered or sold by any Participating Broker-Dealer in any jurisdiction described in paragraph 3(d) hereof or the initiation of any proceedings for that purpose, (iv) in the case of a Shelf Registration, if, between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company and the Trust contained in any purchase agreement, securities sales agreement or other similar agreement cease to be true and correct in all material respects, (v) of the happening of any event or the failure of any event to occur or the discovery of any facts, during the Effectiveness Period, which makes any statement made in such Registration Statement or the related Prospectus untrue in any material respect or which causes such Registration Statement or Prospectus to 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, and (vi) of the reasonable determination of the Company and the Trust that a post-effective amendment to the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest practicable time;
(g) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities included within the coverage of such Shelf Registration Statement, without charge, at least one conformed copy of each Registration Statement relating to such Shelf Registration and
any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends (other than with respect to restrictions requiring minimum transfers in blocks having an aggregate principal or liquidation amount, as the case may be, of $100,000 and multiples of $1,000 in excess thereof) and in such denominations (consistent with the provisions of the Indenture and the Declaration) and registered in such names as the selling Holders or the underwriters may reasonably request at least two Business Days prior to the closing of any sale of Registrable Securities pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to such Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not include any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and to notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time prior to the filing of any document which is to be incorporated by reference into a Registration Statement or a Prospectus after the initial filing of a Registration Statement, provide a reasonable number of copies of such document to the Holders; and make such of the representatives of the Company and the Trust as shall be reasonably requested by the Holders of Registrable Securities or the Initial Purchaser on behalf of such Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange Capital Securities and the Capital Securities (and, if the Trust has made a distribution of the Debt Securities to the Holders of the Capital Securities, the Debt Securities or the Exchange Debentures), as the case may be, not later than the effective date of a Registration Statement, and provide the applicable Trustee with certificates for the Exchange Securities or the Registrable Securities, as the case may be, in a form eligible for deposit with the Depository;
(l) cause the Indenture, the Declaration, the Capital Securities Guarantee (in the case of a Shelf Registration) and the Exchange Capital Securities Guarantee (in the case of an Exchange Offer Registration) to be qualified under the TIA, in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be, and effect such changes to such documents as may be required for them to be so qualified in accordance with the terms of the TIA and execute, and cause the applicable Trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements (including underwriting agreements) as are customary in underwritten offerings and take all such other appropriate actions in connection therewith as are reasonably requested by the Holders of at least 25% in aggregate principal or liquidation amount, as the case may be, of the Registrable Securities in order to expedite or facilitate the registration or the disposition or the Registrable Securities;
(n) in the case of a Shelf Registration, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, if requested by (x) the Initial Purchaser, in the case where the Initial Purchaser holds Securities acquired by it as part of its initial placement and (y) Holders of at least 25% in aggregate principal or liquidation amount, as the case may be, of the Registrable Securities covered thereby: (i) make such representations and warranties to Holders of such Registrable Securities and the underwriters (if any), with respect to the business of the Trust, the Company and the subsidiaries of the Company as then conducted and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) obtain opinions of counsel to the Company and the Trust and updates thereof (which may be in the form of a reliance letter) in form and substance reasonably satisfactory to the managing underwriters (if any) and the Holders of a majority in aggregate principal or liquidation amount, as the case may be, of the Registrable Securities being sold, addressed to each selling Holder and the underwriters (if any) covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (iii) obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriters from the independent certified public accountants of the Company and the Trust (and, if necessary, any other independent certified public accountants of any business acquired by the Company and the Trust for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as reasonably requested by such underwriters in accordance with Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 4 hereof (or such other provisions and procedures acceptable to Holders of a majority in aggregate principal or liquidation amount, as the case may be, of Registrable Securities covered by such Registration Statement and the managing underwriters) customary for such agreements with respect to all parties to be indemnified pursuant to said Section (including, without limitation, such underwriters and selling Holders); and in the case of an underwritten registration, the above requirements shall be satisfied at each closing under the related underwriting agreement or as and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 2(b) or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2(a) is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, make reasonably available for
inspection by any selling Holder of Registrable Securities or Participating Broker-Dealer, as applicable, who certifies to the Company and the Trust that it has a current intention to sell Registrable Securities pursuant to the Shelf Registration, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorney, accountant or other agent retained by any such selling Holder, Participating Broker-Dealer, as the case may be, or underwriter (collectively, the "INSPECTORS"), at the offices where normally kept, during the Company's normal business hours, all financial and other records, pertinent corporate documents and properties of the Trust, the Company and its subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Trust, the Company and its subsidiaries to supply all relevant information in each case reasonably requested by any such Inspector in connection with such Registration Statement; records and information which the Company and the Trust determine, in good faith, to be confidential and any Records and information which it notifies the Inspectors are confidential shall not be disclosed to any Inspector except where (i) the disclosure of such Records or information is necessary to avoid or correct a material misstatement or omission in such Registration Statement, (ii) the release of such Records or information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or is necessary in connection with any action, suit or proceeding or (iii) such Records or information previously has been made generally available to the public; each selling Holder of such Registrable Securities and each such Participating Broker-Dealer will be required to agree in writing that Records and information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Trust or the Company unless and until such is made generally available to the public through no fault of an Inspector or a selling Holder; and each selling Holder of such Registrable Securities and each such Participating Broker-Dealer will be required to further agree in writing that it will, upon learning that disclosure of such Records or information is sought in a court of competent jurisdiction, or in connection with any action, suit or proceeding, give notice to the Company and allow the Company at its expense to undertake appropriate action to prevent disclosure of the Records and information deemed confidential;
(p) comply with all applicable rules and regulations of the SEC so long as any provision of this Agreement shall be applicable and make generally available to its securityholders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effective date of a Registration Statement, which statements shall cover said 12-month periods, provided that the obligations under this paragraph (p) shall be satisfied by the timely filing of quarterly and annual reports on Forms 10-Q and 10-K under the Exchange Act;
(q) upon consummation of an Exchange Offer or a Private Exchange, if requested by a Trustee, obtain an opinion of counsel to the Company addressed to the Trustee for the benefit of all Holders of Registrable Securities participating in the Exchange Offer or the Private Exchange, as the case may be, substantially to the effect that (i) each of the Company and
the Trust, as the case requires, has duly authorized, executed and delivered the Exchange Securities and Private Exchange Securities, and (ii) each of the Exchange Securities or the Private Exchange Securities, as the case may be, constitutes a validly issued, fully paid and nonassessable undivided beneficial ownership interest in the assets of the Trust (in the case of an Exchange Capital Security) or a legal, valid and binding obligation of the Company, enforceable against the Company, in accordance with its respective terms (in the case of an Exchange Debenture and the Exchange Capital Securities Guarantee), as the case may be (in each case, with customary exceptions);
(r) if an Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Registrable Securities by Holders to the Company or the Trust, as applicable (or to such other Person as directed by the Company or the Trust, respectively), in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be, the Company or the Trust, as applicable, shall mark, or cause to be marked, on such Registrable Securities delivered by such Holders that such Registrable Securities are being canceled in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be; it being understood that in no event shall such Registrable Securities be marked as paid or otherwise satisfied;
(s) cooperate with each seller of Registrable Securities covered by any Registration Statement and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD;
(t) take all other steps necessary to effect the registration of the Registrable Securities covered by a Registration Statement contemplated hereby;
(u) in the case of the Exchange Offer Registration Statement (A) (i) include in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," which section shall be reasonably acceptable to the Initial Purchaser or another representative of the Participating Broker-Dealers, and which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that holds Registrable Securities acquired for its own account as a result of market-making activities or other trading activities (a "PARTICIPATING BROKER-DEALER") and that will be the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities to be received by such broker-dealer in the Exchange Offer, whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the reasonable judgment of the Initial Purchaser or such other representative, represent the prevailing views of the staff of the SEC, including a statement that any such broker-dealer who receives Exchange Securities for Registrable Securities pursuant to the Exchange Offer may be deemed a statutory underwriter and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has delivered to the Company the notice referred to in Section 3(e), without charge, as many copies of each Prospectus included in the Exchange Offer Registration Statement, including any preliminary Prospectus, and any amendment or supplement thereto, as such Participating Broker-Dealer may reasonably request (each of the Company and the Trust hereby consents to the use of the Prospectus forming part of the Exchange Offer Registration Statement or any amendment or supplement thereto by any Person
subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, in connection with the sale or transfer of the Exchange Securities covered by the Prospectus or any amendment or supplement thereto), (iii) use their best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements under the Securities Act and applicable rules and regulations in order to resell the Exchange Securities; PROVIDED, HOWEVER, that such period shall not be required to exceed 90 days (or such longer period if extended pursuant to the last sentence of Section 3 hereof) (the "APPLICABLE PERIOD"), and (iv) include in the transmittal letter or similar documentation to be executed by an exchange offeree in order to participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable Securities acquired for its own account as a result of market-making activities or other trading activities, it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of Exchange Securities received in respect of such Registrable Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the acknowledgment described in clause (x) and by delivering a Prospectus in connection with the exchange of Registrable Securities, the broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act; and (B) the Company and the Trust agree to deliver to the Initial Purchaser or to another representative of the Participating Broker-Dealers, if requested by the Initial Purchaser or such other representative of Participating Broker-Dealers, on behalf of the Participating Broker-Dealers upon consummation of the Exchange Offer (i) an opinion of counsel in form and substance reasonably satisfactory to the Initial Purchaser or such other representative of the Participating Broker-Dealers, covering the matters customarily covered in opinions requested in connection with Exchange Offer Registration Statements and such other matters as may be reasonably requested (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions), (ii) an officers' certificate containing certifications substantially similar to those set forth in Section 5(g) of the Purchase Agreement and such additional certifications as are customarily delivered in a public offering of debt securities and (iii) as well as upon the effectiveness of the Exchange Offer Registration Statement, a comfort letter, in each case, in customary form if permitted by Statement on Auditing Standards No. 72.
The Company or the Trust may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company or the Trust, as applicable, such information regarding such seller as may be required by the staff of the SEC to be included in a Registration Statement. The Company or the Trust may exclude from such registration the Registrable Securities of any seller who unreasonably fails to furnish such information within a reasonable time after receiving such request. The Company shall have no obligation to register under the Securities Act the Registrable Securities of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if
Participating Broker-Dealers who have notified the Company and the Trust that
they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in this Section 3(u) hereof are seeking to
sell Exchange Securities and are required to deliver Prospectuses, each Holder
agrees that, upon receipt of any notice from the Company or the Trust of the
occurrence of any event specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof or until it is advised in writing (the "Advice") by the
Company and the Trust that the use of the applicable Prospectus may be resumed,
and, if so directed by the Company and the Trust, such Holder will deliver to
the Company or the Trust (at the Company's or the Trust's expense, as the case
requires) all copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities or Exchange Securities, as the case may be, current at
the time of receipt of such notice. If the Company or the Trust shall give any
such notice to suspend the disposition of Registrable Securities or Exchange
Securities, as the case may be, pursuant to a Registration Statement, the
Company and the Trust shall use their best efforts to file and have declared
effective (if an amendment) as soon as practicable after the resolution of the
related matters an amendment or supplement to the Registration Statement and
shall extend the period during which such Registration Statement is required to
be maintained effective and usable for resales pursuant to this Agreement by the
number of days in the period from and including the date of the giving of such
notice to and including the date when the Company and the Trust shall have made
available to the Holders (x) copies of the supplemented or amended Prospectus
necessary to resume such dispositions or (y) the Advice.
4. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any Registration Statement, the Company and the Trust shall, jointly and severally, indemnify and hold harmless the Initial Purchaser, each Holder, each underwriter who participates in an offering of the Registrable Securities, each Participating Broker-Dealer, each Person, if any, who controls any of such parties within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each of their respective partners, directors, officers, employees and agents as follows:
(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 any Registration Statement (or any amendment or supplement thereto), covering Registrable Securities or Exchange Securities, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary 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 in the Registration Statement;
provided that (subject to Section 4(d) hereof) any such settlement is effected with the prior written consent of the Company and the Trust; and
(iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel, except to the extent otherwise expressly provided in Section 4(c) hereof), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) of this Section 4(a);
PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished in writing to the Company or the Trust by the Initial Purchaser or such Holder, underwriter or Participating Broker-Dealer for use in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(b) The Initial Purchaser and each Holder, underwriter or Participating Broker-Dealer agree, severally and not jointly, to indemnify and hold harmless the Company, its directors and officers (including each officer of the Company and the Trust who signed the Registration Statement), the Trust, each of the Trustees and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense whatsoever described in the indemnity contained in Section 4(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company or the Trust by such Holder, underwriter or Participating Broker-Dealer, as the case may be, expressly for use in such Registration Statement (or any amendment thereto), or any such Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that in the case of a Shelf Registration Statement, no such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) 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 which it may have under this Section 4 to the extent that it is not materially prejudiced by such failure as a result thereof, and in any event shall not relieve it from liability which it may have otherwise on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 4(a) or (b) above, counsel to the indemnified parties shall be selected by such parties. An indemnifying party may participate at its own expense in the defense of 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 the fees and expenses of more than one counsel (in addition to 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 4 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional written release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly
requested an indemnifying party to reimburse the indemnified party for
reasonable fees and expenses of counsel pursuant to Section 4(a), such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 4(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, the Company, the Trust and the
Holders shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
the Company, the Trust and the Holders, as incurred; PROVIDED, however, that no
Person guilty of fraudulent misrepresentation (within the meaning of Section
l1(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. As between the Company, the
Trust, and the Holders, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company and Trust, on the one hand, and the Holders, on
the other hand, with respect to the statements or omissions which resulted in
such loss, liability, claim, damage or expense, or action in respect thereof, as
well as any other relevant equitable considerations. The relative fault of the
Company and the Trust, on the one hand, and of the Holders, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Trust, on the one hand, or by or on behalf of the Holders, on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Trust and the
Holders of the Registrable Securities agree that it would not be just and
equitable if contribution pursuant to this Section 4 were to be determined by
pro rata allocation or by any other method of allocation that does not take into
account the relevant equitable considerations. For purposes of this Section 4,
each Affiliate of a Holder, and each partner, director, officer, employee and
Person, if any, who controls a Holder or such Affiliate within the meaning of
Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Holder, and each director of the Company, each Trustee of the Trust and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as each of the Company or the Trust.
5. PARTICIPATION IN AN UNDERWRITTEN REGISTRATION. No Holder may participate in an underwritten registration hereunder unless such Holder (a) agrees to sell such Holder's Registrable Securities on the basis provided in the underwriting arrangement approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents reasonably required under the terms of such underwriting arrangements.
6. SELECTION OF UNDERWRITERS. The Holders of Registrable Securities covered by the Shelf Registration Statement who desire to do so may sell the Securities covered by such Shelf Registration in an underwritten offering, subject to the provisions of Section 3(m) hereof. In any such underwritten offering, the underwriter or underwriters and manager or managers that will administer the offering will be selected by the Holders of a majority in aggregate principal or liquidation amount, as applicable, of the Registrable Securities included in such offering; PROVIDED, HOWEVER, that such underwriters and managers must be reasonably satisfactory to the Company and the Trust.
7. MISCELLANEOUS.
(a) RULE 144 AND RULE 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the Exchange Act
and any Registrable Securities remain outstanding, the Company will file the
reports required to be filed by it under the Securities Act and Section 13(a) or
15(d) of the Exchange Act and the rules and regulations adopted by the SEC
thereunder; PROVIDED, HOWEVER, that if the Company ceases to be so required to
file such reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales of its securities pursuant to Rule 144 under the Securities Act,
(b) deliver such information to a prospective purchaser as is necessary to
permit sales of its securities pursuant to Rule 144A under the Securities Act
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time, (ii) Rule 144A
under the Securities Act, as such rule may be amended from time to time, or
(iii) any similar rules or regulations hereafter adopted by the SEC. Upon the
request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
(b) NO INCONSISTENT AGREEMENTS. Neither the Company nor the Trust has entered into, nor will the Company or the Trust on or after the date of this Agreement enter into, any agreement which is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or which otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company's or the Trust's other issued and outstanding securities under any such agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company and the Trust have obtained written consent of Holders of a majority in aggregate principal or liquidation amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or departure; PROVIDED THAT no amendment, modification or supplement or waiver or consent to the departure with respect to the provisions of Section 4 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder of Registrable Securities. Notwithstanding the foregoing sentence, (i) this Agreement may be amended, without the consent of any Holder of Registrable Securities, by written agreement signed by the Company, the Trust and the Initial Purchaser, to cure any ambiguity, correct or supplement any provision of this Agreement that may be inconsistent with any other provision of this Agreement or to make any other provisions with respect to matters or questions arising under this Agreement which shall not be inconsistent with other provisions of this Agreement, (ii) this Agreement may be amended, modified or supplemented, and waivers and consents to departures from the provisions hereof may be given, by written agreement signed by the Company, the Trust and the Initial Purchaser to the extent that any such amendment, modification, supplement, waiver or consent is, in their reasonable judgment, necessary or appropriate to comply with applicable law (including any interpretation of the Staff of the SEC) or any change therein and (iii) to the extent any provision of this Agreement relates to the Initial Purchaser, such provision may be amended, modified or supplemented, and waivers or consents to departures from such provisions may be given, by written agreement signed by the Initial Purchaser, the Company and the Trust. Each Holder of Registrable Securities shall be bound by any amendment or waiver effected pursuant to this Section 7(c), whether or not any notice, writing or marking indicating such amendment or waiver appears on such security or is delivered to such Holder.
(d) NOTICES. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company or the Trust by means of a notice given in accordance with the provisions of this Section 7(d), which address initially is, with respect to the Initial Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the Company or the Trust, initially at the Company's address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of the Initial Purchaser, including, without limitation and without the need for an express assignment, subsequent Holders; PROVIDED, HOWEVER, that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement, the Declaration or the Indenture. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities, such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof.
(f) THIRD PARTY BENEFICIARIES. Each Holder and any Participating Broker-Dealer shall be third party beneficiaries of the agreements made hereunder among the Initial Purchaser, the Company and the Trust, and the Initial Purchaser shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) SEVERABILITY. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY, THE TRUST OR ITS AFFILIATES. Whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Company, the Trust or any Affiliates shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
DIME COMMUNITY BANCSHARES, INC.
By: /s/ Michael P. Devine
---------------------
Michael P. Devine
President and Chief Operating Officer
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DIME COMMUNITY CAPITAL TRUST I
By: DIME COMMUNITY BANCSHARES, INC.,
as Sponsor
By: /s/ Michael P. Devine
---------------------
Michael P. Devine
President and Chief Operating Officer
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Confirmed and accepted as of the date first above written:
SANDLER O'NEILL & PARTNERS, L.P.
By: SANDLER O'NEILL & PARTNERS CORP.,
the sole general partner
By: /s/ Catherine A Lawton
---------------------------------
Catherine A Lawton
Vice President
|
Registration Rights Agreement
LIQUIDATED DAMAGES AGREEMENT
THIS LIQUIDATED DAMAGES AGREEMENT (the "AGREEMENT") is made and entered into as of March 12, 2004 by and among DIME COMMUNITY BANCSHARES, INC., a Delaware corporation (the "COMPANY"), DIME COMMUNITY CAPITAL TRUST I, a business trust formed under the laws of the state of Delaware (the "TRUST"), and SANDLER O'NEILL & PARTNERS, L.P. ("SANDLER O'NEILL" or the "INITIAL PURCHASER").
WHEREAS, as an inducement to the Initial Purchaser to enter into the Purchase Agreement, dated March 12, 2004 (the "PURCHASE AGREEMENT"), by and among the Company, the Trust and the Initial Purchaser (providing for, among other things, the sale by the Trust to the Initial Purchaser of 70,000 of the Trust's 7.0% Capital Securities, Series A, liquidation amount of $1,000 per Capital Security (the "CAPITAL SECURITIES"), the proceeds of which will be used by the Trust to purchase 7.0% Junior Subordinated Deferrable Interest Debt Securities due April 14, 2034, Series A, of the Company (the "DEBT SECURITIES")), and as a condition to the several obligations of the Initial Purchaser thereunder, the Company and the Trust have agreed to provide to the Initial Purchaser and its direct and indirect transferees certain registration and related rights pursuant to and in accordance with the terms of the Registration Rights Agreement, dated the date hereof (the "REGISTRATION RIGHTS AGREEMENT"), by and among the Company, the Trust and the Initial Purchaser; and
WHEREAS, notwithstanding the fact that the Company and the Trust have consummated or will consummate an Exchange Offer, pursuant to Section 2(b) of the Registration Rights Agreement, the Initial Purchaser may, under certain circumstances, require the Company and the Trust to file a Shelf Registration Statement for the resale of certain Registrable Securities held by it;
WHEREAS, the Registration Rights Agreement contains certain provisions concerning the time within which the Company and the Trust must file the Shelf Registration Statement and the period for which such Shelf Registration Statement must remain effective and usable for resales; and
WHEREAS, the Company, the Trust and the Initial Purchaser desire to provide for the payment of liquidated damages by the Company directly to the Initial Purchaser in the event that the Company and the Trust fail to comply with such contractual provisions, as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used (including in the foregoing recitals) but not defined herein shall have the meanings given to such terms in the Registration Rights Agreement, except that (a) the term "Shelf Registration Statement" shall refer only to a Shelf Registration Statement filed by the Company and the Trust pursuant to Section 2(b) of the Registration Rights Agreement, and (b) the term "Registrable Securities" shall refer only to those Registrable Securities held at such time by the Initial Purchaser.
2. PAYMENT OF LIQUIDATED DAMAGES. (a) In the event that (i) the Shelf
Registration Statement is not filed with the SEC on or prior to the 45th day
after a request for such filing is properly made by the Initial Purchaser in
accordance with Section 2(b)(iv) of the Registration Rights Agreement (provided
that in no event shall such date be required to be earlier than 75 days after
the Issue Date), or (ii) the Shelf Registration Statement is not declared
effective by the SEC on or prior to the later of the 40th day after the date
such Shelf Registration Statement was required to be filed pursuant to the terms
of the Registration Rights Agreement and the 180th date after the Issue Date, or
(iii) the Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be continuously effective or usable for
resales (whether as a result of an event contemplated by Section 3(e) of the
Registration Rights Agreement or otherwise) at any time during the 180-day
period (and any extensions of such period pursuant to the last paragraph of
Section 3 of the Registration Rights Agreement) immediately following the date
on which the Shelf Registration Statement is first declared effective (other
than after such time as all Registrable Securities have been disposed of
thereunder or otherwise cease to be Registrable Securities pursuant to the terms
of the Registration Rights Agreement), then in each case the Company shall pay
liquidated damages to the Initial Purchaser, at a rate of 25 basis points per
annum in respect of the aggregate liquidation amount of Capital Securities held
by the Initial Purchaser or, in the event that the Trust is liquidated and Debt
Securities are distributed to holders of Capital Securities, the aggregate
principal amount of Debt Securities held by the Initial Purchaser, as the case
may be, in respect of the period (x) commencing on the 46th day after such
request for the filing of a Shelf Registration Statement is made by the Initial
Purchaser (provided that in no event shall such date be required to be earlier
than 76 days after the Issue Date) and terminating upon the filing of the Shelf
Registration Statement (in the case of clause (i) above), (y) commencing on the
later of the 41st day after the date the Shelf Registration Statement was
required to be filed and the 181st day after the Issue Date and terminating upon
the effectiveness of the Shelf Registration Statement (in the case of clause
(ii) above), or (z) commencing on the day the Shelf Registration Statement
ceases to be effective or usable for resales and terminating at such time as the
Shelf Registration Statement again becomes effective and usable for resales (in
the case of clause (iii) above), PROVIDED, HOWEVER, that the maximum aggregate
amount of liquidated damages payable by the Company pursuant to this Agreement
and the Registration Rights Agreement shall not exceed 25 basis points per annum
in respect of the aggregate liquidation amount of the Capital Securities or, in
the event the Trust is liquidated and Debt Securities are distributed to holders
of Capital Securities, the aggregate principal amount of Debt Securities.
(b) Any amounts of liquidated damages payable by the Company pursuant to this Section 2 shall be paid in cash directly to the Initial Purchaser on the next succeeding January 15, April 15, July 15 or October 15, as the case may be, following the period in respect of which such Liquidated Damages have become due and payable hereunder.
3. GENERAL.
(a) COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(b) AMENDMENTS. This Agreement may be amended by the parties hereto only by a written instrument duly executed on behalf of each of the parties hereto.
(c) ENTIRE AGREEMENT. This Agreement and the Registration Rights Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.
(d) GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(e) NOTICES. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered to the parties at the addresses set forth in, and in a manner contemplated by, the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties have executed this Liquidated Damages Agreement as of the date first written above.
DIME COMMUNITY BANCSHARES, INC.
By: /s/ Michael P. Devine
-------------------------------------
Michael P. Devine
President and Chief Operating Officer
|
DIME COMMUNITY CAPITAL TRUST I
By: DIME COMMUNITY BANCSHARES, INC.,
as Sponsor
By: /s/ Michael P. Devine
-------------------------------------
Michael P. Devine
President and Chief Operating Officer
|
SANDLER O'NEILL & PARTNERS, L.P.
By: Sandler O'Neill & PARTNERS CORP.,
the sole general partner
By: /s/ Catherine A Lawton
-------------------------------------
Catherine A Lawton
Vice President
|
Liquidated Damages Agreement
[Letterhead of Thacher Proffitt & Wood LLP]
July 29, 2004
Dime Community Capital Trust I
Dime Community Bancshares, Inc.
209 Havemeyer Street
Brooklyn, New York 11211
Ladies and Gentlemen:
We have acted as special counsel to Dime Community Bancshares, Inc., a Delaware corporation (the "Corporation") and Dime Community Capital Trust I, a Delaware statutory trust (the "Trust"), in connection with the preparation and filing by the Corporation, and the Trust with the Securities and Exchange Commission (the "Commission") of an exchange offer registration statement (the "Registration Statement") on Form S-4 under the Securities Act of 1933, as amended (the "Act"), relating to (i) the issuance of up to 70,000 7.0% Capital Securities, Series B (liquidation amount of $1,000 per capital security) of the Trust (the "Exchange Capital Securities"), representing preferred beneficial interests in the assets of the Trust under the Second Amended and Restated Declaration of Trust, dated as of July 29, 2004 (the "Second Amended Declaration"), by and among the Corporation, Wilmington Trust Company, as Institutional Trustee (the "Institutional Trustee"), Wilmington Trust Company, as Delaware Trustee (the "Delaware Trustee"), and the Administrators named therein and the Holders from time to time of undivided beneficial interests in the assets of the Trust, (ii) the issuance of up to $72,165,000 principal amount of 7.0% Junior Subordinated Deferrable Interest Debt Securities due April 14, 2034 Series B (the "Exchange Debt Securities"), by the Corporation pursuant to the Indenture, dated as of March 19, 2004 (the "Indenture"), between the Corporation and Wilmington Trust Company, as Indenture Trustee and (iii) the Series B Guarantee Agreement, dated as of July 27, 2004 (the "Exchange Guarantee"), between the Corporation and Wilmington Trust Company, as Guarantee Trustee (the "Guarantee Trustee"), relating to the Exchange Capital Securities.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. Capitalized terms used and not defined herein shall have the respective meanings set forth in the Registration Statement.
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following:
Dime Community Capital Trust I
Dime Community Bancshares, Inc.
July 29, 2004 Page 2
(i) Copy of the Certificate of Incorporation of the Corporation, certified as of a recent date by the Secretary of State of the State of Delaware;
(ii) Copy of the Bylaws of the Corporation, certified by the Secretary of the Corporation to be a true, correct and complete copy;
(iii) Certificate as of a recent date of the Secretary of State of the State of Delaware certifying as to the good standing of the Corporation under the laws of the State of Delaware;
(iv) Executed copy of the Certificate of Trust of the Trust filed with the Secretary of State of the State of Delaware on March 12, 2004;
(v) Certificate as of a recent date of the Secretary of State of the State of Delaware certifying as to the good standing of the Trust under the laws of the State of Delaware;
(vi) Copies, certified by the Secretary of the Corporation to be true, correct and complete copies, of the resolutions duly adopted by the Board of Directors of the Corporation on February 19, 2004, the Written Consent of the Executive Committee of the Board of Directors of the Company dated March 11, 2004, and the resolutions adopted by the Pricing Committee of the Board of Directors of the Company on March 12, 2004;
(vii) Executed copy of the Written Consent of the Administrators dated July 29, 2004;
(viii) Copy of the Registration Statement on Form S-4 filed by the Corporation and the Trust with the Commission on July 29, 2004 under the Act;
(ix) Executed copy of the Declaration of Trust, dated as of March 11, 2004, by and between the Corporation and the Delaware Trustee;
(x) Executed copy of the Second Amended Declaration;
(xi) Form of certificates evidencing the Exchange Capital Securities;
(xii) Executed copy of the Exchange Guarantee;
(xiii) Executed copy of the Indenture;
(xiv) Form of certificate evidencing the Exchange Debt Securities; and
(xv) Executed copy of the Registration Rights Agreement, dated as of March 12, 2004 (the "Registration Rights Agreement"), by and among the Corporation, the Trust and the Initial Purchaser.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such other documents, certificates and records, and we have examined such matters of law, as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
Dime Community Capital Trust I
Dime Community Bancshares, Inc.
July 29, 2004 Page 3
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. In making our examination of documents executed by parties other than the Corporation and the Trust, we have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents, and the validity and binding effect and enforceability thereof on such parties. As to any facts material to the opinions expressed herein which we did not independently establish or verify, we have relied upon oral or written statements and representations of the trustees of the Trust, representatives of the Corporation and others and the accuracy of the facts, information, covenants and representations set forth in the documents listed above. We have assumed the accuracy of all statements of fact, and we did not independently establish or verify the facts, information, covenants and representations set forth in the documents listed above. We have not, except as specifically identified herein, been retained or engaged to perform and, accordingly have not performed, any independent review or investigation of any statutes, ordinances, laws, regulations, agreements, contracts, instruments, corporate records, orders, writs, judgments, rules or decrees to which the Corporation or the Trust may be a party or to which the Corporation or the Trust or any property thereof may be subject or bound.
Based upon and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:
1. The Exchange Capital Securities have been duly authorized for issuance by the Trust and, when the Second Amended Declaration has been qualified under the Trust Indenture Act of 1939, as amended, and when the Exchange Capital Securities are duly issued, executed and authenticated in the manner provided for in the Second Amended Declaration and delivered in the exchange offer as contemplated by the Registration Rights Agreement and the Registration Statement, the Exchange Capital Securities will be validly issued and, subject to the qualifications set forth in paragraph 4 below, fully paid and nonassessable undivided beneficial interests in the assets of the Trust and will entitle the holders thereof to the benefits of the Second Amended Declaration.
2. The Exchange Debt Securities have been duly authorized for issuance by the Corporation pursuant to the Indenture and, when the Indenture has been qualified under the Trust Indenture Act of 1939, as amended, and when the Exchange Debt Securities are executed, authenticated and delivered in the manner provided for in the exchange offer as contemplated in the Registration Rights Agreement, the Exchange Debt Securities will constitute valid arid binding obligations of the Corporation and will entitle the holders thereof to the benefits of the Indenture, enforceable against the Corporation in accordance with their terms, except as rights to indemnity and contribution thereunder may be limited under applicable law or public policy, and subject to the qualifications that (i) enforcement thereof may be limited by bankruptcy, insolvency, receivership, reorganization, liquidation, voidable preference, moratorium or other laws (including the laws of fraudulent conveyance and transfer) or judicial decisions affecting the enforcement of creditors' rights generally or the reorganization of financial institutions and (ii)
Dime Community Capital Trust I
Dime Community Bancshares, Inc.
July 29, 2004 Page 4
the enforceability of the Corporation's obligations thereunder is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability and enforceability of certain remedies, including the remedies of specific performance and self-help.
3. The Exchange Guarantee has been duly authorized by the Corporation
and, when the Exchange Guarantee has been qualified under the Trust Indenture
Act of 1939, as amended, and when the Exchange Guarantee is executed and
delivered in the manner provided for in the exchange offer as contemplated in
the Registration Rights Agreement, the Exchange Guarantee will constitute a
valid and binding instrument of the Corporation, enforceable against the
Corporation in accordance with its terms, except as rights to indemnity and
contribution thereunder may be limited under applicable law or public policy,
and subject to the qualifications that (i) enforcement thereof may be limited by
bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, moratorium or other laws (including the laws of fraudulent
conveyance and transfer) or judicial decisions affecting the enforcement of
creditors' rights generally or the reorganization of financial institutions and
(ii) the enforceability of the Corporation's obligations thereunder is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and to the effect of certain
laws and judicial decisions upon the availability and enforceability of certain
remedies, including the remedies of specific performance and self-help.
4. The holders of the Exchange 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; it being understood, however, that the holders of the Exchange Capital Securities may be required to make payment or provide indemnity or security as set forth in the Second Amended Declaration.
We are not licensed to practice law in any jurisdiction other than the State of New York. In rendering this opinion letter, we do not express any opinion concerning any law other than the law of the State of New York, the corporate law of the State of Delaware, the law of the State of Delaware concerning the treatment of Delaware statutory trusts and the federal law of the United States of America, and we do not express any opinion concerning the securities laws of any jurisdiction other than the federal securities laws of the United States. We do not express any opinion on any issue not expressly addressed above.
We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion. This opinion letter is rendered for the benefit of the Corporation, the Trust and the holders of the Exchange Capital Securities.
We consent to the filing of this opinion as an Exhibit to the Registration Statement, and to the reference to our firm under the heading "Legal Matters" in the prospectus which is part of the Registration Statement.
Very truly yours,
/s/ Thacher Proffitt & Wood LLP |
[Letterhead of Thacher Proffitt & Wood LLP]
July 29, 2004
Dime Community Bancshares, Inc.
209 Havemeyer Street
Brooklyn, New York 11211
Dime Community Capital Trust I
209 Havemeyer Street
Brooklyn, New York 11211
Dear Ladies and Gentlemen:
We have acted as special tax counsel to Dime Community Bancshares, Inc., a Delaware corporation ("Dime Community"), and Dime Community Capital Trust I, a statutory trust formed under the Statutory Trust Act of the State of Delaware (the "Trust"), in connection with the exchange offer registration statement on Form S-4 (the "Registration Statement") filed with the Securities and Exchange Commission (the "Commission") for the purpose of (i) registering under the Securities Act of 1933, as amended (the "Securities Act"), (a) the guarantee by the Corporation of up to 70,000 of the Trust's 7.0% Capital Securities, Series B, liquidation amount of $1,000 per capital security (the "Exchange Capital Securities") with respect to distributions and payments upon liquidation, redemption and otherwise (the "Exchange Guarantee"), (b) up to $72,165,000 principal amount of 7.0% Junior Subordinated Deferrable Interest Debt Securities due April 14, 2034, Series B (the "Exchange Junior Subordinated Debt Securities") issued by the Corporation and (c) an aggregate of up to 70,000 7.0% Exchange Capital Securities (liquidation amount of $1,000 per security) of the Trust, and (ii) exchanging (such event, the "Exchange") (a) the Exchange Guarantee for the previously issued guarantee, (b) the Exchange Junior Subordinated Debt Securities for the previously issued junior subordinated debt securities (the "Original Junior Subordinated Debt Securities") and (c) the Exchange Capital Securities for the previously issued 7.0% Capital Securities, Series A, liquidation amount of $1,000 per capital security (the "Original Capital Securities"). Capitalized terms used and not defined herein shall have the respective meanings set forth in the Registration Statement.
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the certificate of trust of the Trust filed with the Secretary of State of the State of Delaware on March 11, 2004; (ii) the Second Amended and Restated Declaration of Trust (including the designations of the terms of the Trust Securities annexed thereto), dated July 29, 2004 (the "Declaration"), by and among Dime Community, as
Dime Community Bancshares, Inc.
Dime Community Capital Trust I
July 29, 2004 Page 2
Sponsor, Wilmington Trust Company ("WTC"), as Institutional Trustee and the Delaware Trustee, and Kenneth J. Mahon, Michael Pucella and Lance Bennett (collectively, the "Administrators"); (iii) the form of certificates evidencing the Original Capital Securities and the Exchange Capital Securities and annexed to the Declaration; (iv) the Registration Rights Agreement, dated March 12, 2004, by and among Dime Community, the Trust and the Initial Purchaser; (v) the Indenture and the form of certificate evidencing the Original Junior Subordinated Debt Securities and the Exchange Junior Subordinated Debt Securities; and (vi) the Exchange Guarantee Agreement, by and between Dime Community, as guarantor, and WTC for the benefit of the holders of the Exchange Capital Securities. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
In rendering the opinions expressed below, we have participated in the preparation of the Registration Statement. Our opinion is conditioned on, among other things, the initial and continuing accuracy of the facts, information, covenants and representations set forth in the documents referred to above and the statements and representations made by officers of Dime Community and others. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such documents. We also have assumed that the transactions related to the issuance of the Exchange Capital Securities and the Exchange Junior Subordinated Debt Securities will be consummated in the manner contemplated by the Registration Statement.
In rendering our opinion, we have considered the current provisions of the Internal Revenue Code of 1986, as amended, Treasury regulations promulgated thereunder, judicial decisions and Internal Revenue Service rulings, all of which are subject to change, which changes may be retroactively applied. A change in the authorities upon which our opinion is based could affect our conclusions. There can be no assurances, moreover, that any of the opinions expressed herein will be accepted by the Internal Revenue Service or, if challenged, by a court.
Based solely upon the foregoing, we are of the opinion that under current federal income tax law, as of the date hereof:
(i) although the discussion set forth in the Registration Statement under the heading "CERTAIN FEDERAL INCOME TAX CONSEQUENCES" does not purport to discuss all possible federal income tax consequences of the Exchange and the ownership and disposition of the Exchange Capital Securities or the Exchange Junior Subordinated Debt Securities, such discussion constitutes, in all material respects, a fair and accurate summary under current law of the material federal income tax consequences of such matters; and
(ii) the Exchange will not be a taxable event to the holders of the Original Capital Securities for federal income tax purposes.
Dime Community Bancshares, Inc.
Dime Community Capital Trust I
July 29, 2004 Page 3
For purposes of this letter, we do not express any opinion concerning any law other than the federal income tax law of the United States. Furthermore, our opinion is limited solely to the specific questions and conclusions set forth herein and we express no opinion to any party as to the tax consequences, whether federal, state, local or foreign, of the issuance of the Exchange Junior Subordinated Debt Securities and the Exchange Capital Securities or of any transaction related to or contemplated by such issuance.
We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion. This opinion letter is rendered for the benefit of the Dime Community, the Trust and the holders of the Exchange Capital Securities. Copies of this opinion letter may not be furnished to any other person, nor may any portion of this opinion letter be quoted, circulated or referred to in any other document, without our prior written consent.
We consent to the filing of this opinion as an Exhibit to the Registration Statement, and to the reference to our firm under the heading "Legal Matters" in the prospectus which is part of the Registration Statement.
Very truly yours,
/s/ Thacher Proffitt & Wood LLP |
Microsoft Word 11.0.6113;
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(EXCLUDING INTEREST EXPENSE ON DEPOSITS)
The Company's ratios of earnings to fixed charges (excluding interest expense on deposits) for the periods presented below were as follows:
AT OR FOR THE AT OR FOR THE AT OR FOR THE
THREE MONTHS TWELVE MONTHS TWELVE MONTHS AT OR FOR THE SIX
ENDED ENDED ENDED MONTHS ENDED
MARCH 31, DECEMBER 31, DECEMBER 31, DECEMBER 31,
------------------------------------------------------------------------------------------------------
2004 2003 2002 2002 2001
------------------------------------------------------------------------------------------------------
Net income: $12,340 $51,276 $44,622 $23,460 $17,515
ADD BACK:
Income tax expense 6,968 30,801 26,565 14,008 10,269
------------------------------------------------------------------------------------------------------
NET INCOME BEFORE
INCOME TAXES 19,308 82,077 71,187 37,468 27,784
------------------------------------------------------------------------------------------------------
Fixed charges:
Interest on borrowed
funds 5,925 32,842 47,655 21,647 27,228
------------------------------------------------------------------------------------------------------
TOTAL FIXED CHARGES
(EXCLUDING INTEREST
EXPENSE ON DEPOSITS) 5,925 32,842 47,655 21,647 27,228
------------------------------------------------------------------------------------------------------
EARNINGS (NET INCOME
BEFORE INCOME TAXES
PLUS TOTAL FIXED CHARGES,
EXCLUDING INTEREST
EXPENSE ON DEPOSITS) 25,233 114,919 118,842 59,115 55,012
RATIO OF EARNINGS TO
FIXED CHARGES
(EXCLUDING INTEREST
EXPENSE ON DEPOSITS) 4.26 3.50 2.49 2.73 2.02
|
2002 2001 2000 1999
---------------------------------------------------------------------------
Net income: $38,677 $25,240 $22,374 $19,861
ADD BACK:
Income tax expense 22,826 15,821 15,217 14,015
---------------------------------------------------------------------------
NET INCOME BEFORE
INCOME TAXES 61,503 41,061 37,591 33,876
---------------------------------------------------------------------------
Fixed charges:
Interest on borrowed
funds 53,236 63,703 53,784 32,802
---------------------------------------------------------------------------
TOTAL FIXED CHARGES
(EXCLUDING INTEREST
EXPENSE ON DEPOSITS) 53,236 63,703 53,784 32,802
---------------------------------------------------------------------------
EARNINGS (NET INCOME
BEFORE INCOME TAXES
PLUS TOTAL FIXED CHARGES,
EXCLUDING INTEREST
EXPENSE ON DEPOSITS) 114,739 104,764 91,375 66,678
RATIO OF EARNINGS TO
FIXED CHARGES
(EXCLUDING INTEREST
EXPENSE ON DEPOSITS) 2.16 1.64 1.70 2.03
|
For purposes of computing the ratio of earnings to fixed charges (excluding interest expense on deposits), earnings represent net income before income taxes plus total fixed charges (excluding interest expense on deposits).
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(INCLUDING INTEREST EXPENSE ON DEPOSITS)
The Company's ratios of earnings to fixed charges (including interest expense on deposits) for the periods presented below were as follows:
AT OR FOR THE AT OR FOR THE AT OR FOR THE
THREE MONTHS TWELVE MONTHS TWELVE MONTHS AT OR FOR THE SIX
ENDED ENDED ENDED MONTHS ENDED
MARCH 31, DECEMBER 31, DECEMBER 31, DECEMBER 31,
----------------------------------------------------------------------------
2004 2003 2002 2002 2001
----------------------------------------------------------------------------
Net income: $12,340 $51,276 $44,622 $23,460 $17,515
ADD BACK:
Income tax expense 6,968 30,801 26,565 14,008 10,269
----------------------------------------------------------------------------
NET INCOME BEFORE
INCOME TAXES 19,308 82,077 71,187 37,468 27,784
----------------------------------------------------------------------------
Fixed charges:
Interest on borrowed
funds 9,004 38,221 44,135 21,631 26,504
Interest on deposits 5,925 32,842 47,655 21,647 27,228
----------------------------------------------------------------------------
TOTAL FIXED CHARGES
(INCLUDING INTEREST
EXPENSE ON DEPOSITS) 14,929 71,063 91,790 43,278 53,732
----------------------------------------------------------------------------
EARNINGS (NET INCOME
BEFORE INCOME TAXES
PLUS TOTAL FIXED CHARGES,
INCLUDING INTEREST
EXPENSE ON DEPOSITS) 34,237 153,140 162,977 80,746 81,516
RATIO OF EARNINGS TO
FIXED CHARGES
(INCLUDING INTEREST
EXPENSE ON DEPOSITS) 2.29 2.15 1.78 1.87 1.52
|
2002 2001 2000 1999
-----------------------------------------------
Net income: $38,677 $25,240 $22,374 $19,861
ADD BACK:
Income tax expense 22,826 15,821 15,217 14,015
-----------------------------------------------
NET INCOME BEFORE
INCOME TAXES 61,503 41,061 37,591 33,876
-----------------------------------------------
Fixed charges:
Interest on borrowed
funds 49,008 50,340 45,036 44,417
Interest on deposits 53,236 63,703 53,784 32,802
-----------------------------------------------
TOTAL FIXED CHARGES
(INCLUDING INTEREST
EXPENSE ON DEPOSITS) 102,244 114,043 98,820 77,219
-----------------------------------------------
EARNINGS (NET INCOME
BEFORE INCOME TAXES
PLUS TOTAL FIXED CHARGES,
INCLUDING INTEREST
EXPENSE ON DEPOSITS) 163,747 155,104 136,411 111,095
RATIO OF EARNINGS TO
FIXED CHARGES
(INCLUDING INTEREST
EXPENSE ON DEPOSITS) 1.60 1.36 1.38 1.44
|
For purposes of computing the ratio of earnings to fixed charges (including interest expense on deposits), earnings represent net income before income taxes plus total fixed charges (including interest expense on deposits).
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement of Dime Community Bancshares, Inc. on Form S-4 of our report dated March 5, 2004, incorporated by reference in the Annual Report on Form 10-K of Dime Community Bancshares, Inc. for the year ended December 31, 2003. We also consent to the reference to us under the heading "Experts" in such Prospectus.
/s/ Deloitte & Touche LLP New York, NY July 26, 2004 |
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)
DELAWARE 51-0055023
(State or other jurisdiction or incorporation or organization) (I.R.S. Employer Identification No.)
RODNEY SQUARE NORTH
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890
(Address of principal executive offices)
CYNTHIA L. CORLISS
VICE PRESIDENT AND TRUST COUNSEL
WILMINGTON TRUST COMPANY
RODNEY SQUARE NORTH
WILMINGTON, DELAWARE 19890
(302) 651-8516
(Name, address, including zip code, and telephone number, including area code, of agent of service)
DIME COMMUNITY CAPITAL TRUST I
(Exact name of registrants as specified in its charter)
DELAWARE
(State or other jurisdiction or incorporation or organization) (I.R.S. Employer Identification No.)
DIME COMMUNITY BANCSHARES, INC.
209 HAVEMEYER STREET
BROOKLYN, NEW YORK 11211
TELEPHONE: 712-782-6200
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
______________________
$70 MILLION 7% CAPITAL SECURITIES, SERIES B
(Title of the Securities)
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ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA |
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 26th day of July, 2004.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Rosemary Kennard By: /s/ David A Vanaskey, Jr
Assistant Secretary Name: David A. Vanaskey, Jr.
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for
money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of
any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize
such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in
said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in
proportion to the number of shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall
determine and on such terms and for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and servants as may be provided in the By-Laws as they may from time to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation or By-Laws if such business combination has been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or other entity.
(2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such
business combination, or immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 2003
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. ANNUAL MEETING. The annual meeting of stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time or place as may be designated by resolution by the Board of Directors.
Section 2. SPECIAL MEETINGS. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President.
Section 3. NOTICE. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting.
Section 4. QUORUM. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a smaller number of shares may adjourn from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each share of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein.
ARTICLE 2
DIRECTORS
Section 1. MANAGEMENT. The affairs and business of the Company shall be managed by or under the direction of the Board of Directors.
Section 2. NUMBER. The authorized number of directors that shall constitute the Board of Directors shall be fixed from time to time by or pursuant to a resolution passed by a majority of the Board of Directors within the parameters set by the Charter of the Company. No more than two directors may also be employees of the Company or any affiliate thereof.
Section 3. QUALIFICATION. In addition to any other provisions of these Bylaws, to be qualified for nomination for election or appointment to the Board of Directors, a person must have not attained the age of sixty-nine years at the time of such election or appointment, provided however, the Nominating and Corporate Governance Committee may waive such qualification as to a particular candidate otherwise qualified to serve as a director upon a good faith determination
by such committee that such a waiver is in the best interests of the Company and its stockholders. The Chairman of the Board and the Chief Executive Officer shall not be qualified to continue to serve as directors upon the termination of their service in those offices for any reason.
Section 4. MEETINGS. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Board of Directors, the Chief Executive Officer or the President.
Section 5. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the Chief Executive Officer or the President, and shall be called upon the written request of a majority of the directors.
Section 6. QUORUM. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors.
Section 7. NOTICE. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting.
Section 8. VACANCIES. In the event of the death, resignation, removal, inability to act or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified.
Section 9. ORGANIZATION MEETING. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, and shall elect from its own members a Chairman of the Board, a Chief Executive Officer and a President, who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Chief Financial Officer, who may be the same person, and may appoint at any time such committees as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. The Board of Directors, the Executive Committee or another committee designated by the Board of Directors may elect or appoint such other officers as they may deem advisable.
Section 10. REMOVAL. The Board of Directors may at any time remove, with or without cause, any member of any committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor.
Section 11. RESPONSIBILITY OF OFFICERS. The Board of Directors may designate an officer to be in charge of such departments or divisions of the Company as it may deem advisable.
Section 12. PARTICIPATION IN MEETINGS. The Board of Directors or any committee of the Board of Directors may participate in a meeting of the Board of Directors or such committee, as the case may be, by conference telephone, video facilities or other communications equipment. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all of the members of the Board of Directors or the committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee.
ARTICLE 3
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. EXECUTIVE COMMITTEE.
(A) The Executive Committee shall be composed of not more than nine (9) members, who shall be selected by the Board of Directors from its own members, and who shall hold office at the pleasure of the Board of Directors.
(B) The Executive Committee shall have and may exercise, to the fullest extent permitted by law, all of the powers of the Board of Directors when it is not in session to transact all business for and on behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting.
(E) In the event of an emergency of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these Bylaws, any two available members of the Executive Committee as constituted immediately prior to such emergency shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article 3 of these Bylaws. In the event of the unavailability, at such time, of a
minimum of two members of the Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This Bylaw shall be subject to implementation by resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these Bylaws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementing resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this Section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these Bylaws.
Section 2. AUDIT COMMITTEE.
(A) The Audit Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision over the Audit Services Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Services Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Section 3. COMPENSATION COMMITTEE.
(A) The Compensation Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Compensation Committee shall in general advise upon all matters of policy concerning compensation, including salaries and employee benefits.
(C) The Compensation Committee shall meet whenever and wherever its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
SECTION 4. NOMINATING AND CORPORATE GOVERNANCE COMMITTEE.
(A) The Nominating and Corporate Governance Committee shall be composed of not more than five members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Nominating and Corporate Governance Committee shall provide counsel and make recommendations to the Chairman of the Board and the full Board with respect to the performance of the Chairman of the Board and the Chief Executive Officer, candidates for membership on the Board of Directors and its committees, matters of corporate governance, succession planning for the Company's executive management and significant shareholder relations issues.
(C) The Nominating and Corporate Governance Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President, or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Section 5. OTHER COMMITTEES. The Company may have such other committees with such powers as the Board may designate from time to time by resolution or by an amendment to these Bylaws.
Section 6. ASSOCIATE DIRECTORS.
(A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve at the pleasure of the Board of Directors.
(B) Associate directors shall be entitled to attend all meetings of directors and participate in the discussion of all matters brought to the Board of Directors, but will not have a right to vote.
Section 7. ABSENCE OR DISQUALIFICATION OF ANY MEMBER OF A COMMITTEE. In the absence or disqualification of any member of any committee created under Article III of these Bylaws, the
member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
ARTICLE 4
OFFICERS
Section 1. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at all meetings of the Board of Directors and shall have such further authority and powers and shall perform such duties the Board of Directors may assign to him from time to time.
Section 2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall have the powers and duties pertaining to the office of Chief Executive Officer conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board.
Section 3. PRESIDENT. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board and the Chief Executive Officer, the President shall have the powers and duties of the Chairman of the Board.
Section 4. DUTIES. The Chairman of the Board, the Chief Executive Officer or the President, as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office.
Section 5. VICE PRESIDENTS. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all of the duties of the Chairman of the Board, the Chief Executive Officer and/or the President and such other powers and duties incident to their respective offices or as the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President or the officer in charge of the department or division to which they are assigned may assign to them from time to time.
Section 6. SECRETARY. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the committees thereof, to the keeping of accurate minutes of all such meetings, recording the same in the minute books of the Company and in general notifying the Board of Directors of material matters affecting the Company on a timely basis. In addition to the other notice requirements of these Bylaws and as may be
practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any such meeting. He shall have custody of the corporate seal, affix the same to any documents requiring such corporate seal, attest the same and perform other duties incident to his office.
Section 7. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all transactions of the Company. He shall have general supervision of the expenditures of the Company and periodically shall report to the Board of Directors the condition of the Company, and perform such other duties incident to his office or as the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President may assign to him from time to time.
Section 8. CONTROLLER. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors or the Audit Committee at appropriate times a report relating to the general condition and internal operations of the Company and perform other duties incident to his office.
There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller.
Section 9. AUDIT OFFICERS. The officer designated by the Board of Directors to be in charge of the Audit Services Division of the Company, with such title as the Board of Directors shall prescribe, shall report to and be directly responsible to the Audit Committee and the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Services Division.
Section 10. OTHER OFFICERS. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office of Assistant Secretary of the Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to which they are assigned.
Section 11. POWERS AND DUTIES OF OTHER OFFICERS. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, the Chairman of the Board, the
Chief Executive Officer or the President and the officer in charge of the department or division to which they are assigned.
Section 12. NUMBER OF OFFICES. Any one or more offices of the Company may be held by the same person, except that (A) no individual may hold more than one of the offices of Chief Financial Officer, Controller or Audit Officer and (B) none of the Chairman of the Board, the Chief Executive Officer or the President may hold any office mentioned in Section 12(A).
ARTICLE 5
STOCK AND STOCK CERTIFICATES
Section 1. TRANSFER. Shares of stock shall be transferable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. CERTIFICATES. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Company by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Company, certifying the number of shares owned by him in the Company. The corporate seal affixed thereto, and any of or all the signatures on the certificate, may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee.
Section 3. RECORD DATE. The Board of Directors is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of any dividend, or to any allotment of rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days preceding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent.
ARTICLE 6
SEAL
The corporate seal of the Company shall be in the following form:
Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware."
ARTICLE 7
FISCAL YEAR
The fiscal year of the Company shall be the calendar year.
ARTICLE 8
EXECUTION OF INSTRUMENTS OF THE COMPANY
The Chairman of the Board, the Chief Executive Officer, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as though expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE 9
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be authorized by the Company to perform such special services as the Board of Directors may from time to time determine in accordance with any guidelines the Board of Directors may adopt for such services, and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors.
ARTICLE 10
INDEMNIFICATION
Section 1. PERSONS COVERED. The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director of the Company or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or non-profit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Company shall be required to indemnify such a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors.
The Company may indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or threatened to be made a party or is otherwise involved in any proceeding by reason of the fact that he, or a person for whom he is the legal representative, is or was an officer, employee or agent of the Company or a director, officer, employee or agent of a subsidiary or affiliate of the Company, against all liability and loss suffered and expenses reasonably incurred by such person. The Company may indemnify any such person in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. ADVANCE OF EXPENSES. The Company shall pay the expenses incurred in defending any proceeding involving a person who is or may be indemnified pursuant to Section 1 in advance of its final disposition, provided, however, that the payment of expenses incurred by such a person in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by that person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article 10 or otherwise.
Section 3. CERTAIN RIGHTS. If a claim under this Article 10 for (A) payment of expenses or (B) indemnification by a director or person who is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, is not paid in full within sixty days after a written claim therefor has been received by the Company, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Company shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
Section 4. NON-EXCLUSIVE. The rights conferred on any person by this Article 10 shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. REDUCTION OF AMOUNT. The Company's obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity.
Section 6. EFFECT OF MODIFICATION. Any amendment, repeal or modification of the foregoing provisions of this Article 10 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such amendment, repeal or modification.
ARTICLE 11
AMENDMENTS TO THE BYLAWS
These Bylaws may be altered, amended or repealed, in whole or in part, and any new Bylaw or Bylaws adopted at any regular or special meeting of the Board of Directors by a vote of a majority of all the members of the Board of Directors then in office.
ARTICLE 12
MISCELLANEOUS
Whenever used in these Bylaws, the singular shall include the plural, the plural shall include the singular unless the context requires otherwise and the use of either gender shall include both genders.
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 26, 2004 By: /s/ David A. Vanaskey, Jr.
------------------------------
Name: David A. Vanaskey, Jr.
Title: Vice President
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EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------------------------------------- -----------------
Name of Bank City
in the State of DELAWARE , at the close of business on March 31, 2004.
-----------
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ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................................173,842
Interest-bearing balances.............................................................................. 0
Held-to-maturity securities.................................................................................. 3,355
Available-for-sale securities.............................................................................1,624,384
Federal funds sold in domestic offices......................................................................485,666
Securities purchased under agreements to resell..............................................................13,700
Loans and lease financing receivables:
Loans and leases held for sale. . . . . . . . . . . . . . 0
Loans and leases, net of unearned income. . . . . . . 5,839,156
LESS: Allowance for loan and lease losses. . . . . . 80,750
Loans and leases, net of unearned income, allowance, and reserve.................................5,758,406
Assets held in trading accounts...................................................................................0
Premises and fixed assets (including capitalized leases)....................................................141,663
Other real estate owned.................................................................................... 1,061
Investments in unconsolidated subsidiaries and associated companies...........................................1,755
Customers' liability to this bank on acceptances outstanding......................................................0
Intangible assets:
a. Goodwill.......................................................................................... 157
b. Other intangible assets........................................................................ 11,615
Other assets............................................................................................... 151,998
Total assets..............................................................................................8,367,602
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CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices.......................................................................................6,716,153
Noninterest-bearing . . . . . . . . 1,056,474
Interest-bearing. . . . . . . . . . 5,659,679
Federal funds purchased in domestic offices............................................................... 79,544
Securities sold under agreements to repurchase............................................................. 190,877
Trading liabilities (from Schedule RC-D)..........................................................................0
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases:..............596,427
Bank's liability on acceptances executed and outstanding..........................................................0
Subordinated notes and debentures.................................................................................0
Other liabilities (from Schedule RC-G)......................................................................116,370
Total liabilities.........................................................................................7,699,371
EQUITY CAPITAL
Perpetual preferred stock and related surplus.....................................................................0
Common Stock....................................................................................................500
Surplus (exclude all surplus related to preferred stock)....................................................112,358
a. Retained earnings.......................................................................................565,939
b. Accumulated other comprehensive income.............................................................. (10,566)
Total equity capital........................................................................................668,231
Total liabilities, limited-life preferred stock, and equity capital.......................................8,367,602
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)
DELAWARE 51-0055023
(State or other jurisdiction or incorporation or organization) (I.R.S. Employer Identification No.)
RODNEY SQUARE NORTH
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890
(Address of principal executive offices)
CYNTHIA L. CORLISS
VICE PRESIDENT AND TRUST COUNSEL
WILMINGTON TRUST COMPANY
RODNEY SQUARE NORTH
WILMINGTON, DELAWARE 19890
(302) 651-8516
(Name, address, including zip code, and telephone number, including area code,
of agent of service)
DIME COMMUNITY BANCSHARES, INC.
(Exact name of registrants as specified in its charter)
DELAWARE
(State or other jurisdiction or incorporation or organization) (I.R.S. Employer Identification No.)
209 HAVEMEYER STREET
BROOKLYN, NEW YORK 11211
TELEPHONE: 712-782-6200
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
______________________
FIXED RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBT SECURITIES DUE 2034,
SERIES B (Title of the Indenture Securities)
===================================================================================================================
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ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA |
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 26th day of July, 2004.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /S/ ROSEMARY KENNARD By: /s/ David A. Vanaskey, Jr.
--------------------------
Assistant Secretary Name: David A. Vanaskey, Jr.
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for
money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of
any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize
such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in
said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in
proportion to the number of shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall
determine and on such terms and for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and servants as may be provided in the By-Laws as they may from time to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation or By-Laws if such business combination has been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or other entity.
(2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such
business combination, or immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 2003
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. ANNUAL MEETING. The annual meeting of stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time or place as may be designated by resolution by the Board of Directors.
Section 2. SPECIAL MEETINGS. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President.
Section 3. NOTICE. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting.
Section 4. QUORUM. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a smaller number of shares may adjourn from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each share of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein.
ARTICLE 2
DIRECTORS
Section 1. MANAGEMENT. The affairs and business of the Company shall be managed by or under the direction of the Board of Directors.
Section 2. NUMBER. The authorized number of directors that shall constitute the Board of Directors shall be fixed from time to time by or pursuant to a resolution passed by a majority of the Board of Directors within the parameters set by the Charter of the Company. No more than two directors may also be employees of the Company or any affiliate thereof.
Section 3. QUALIFICATION. In addition to any other provisions of these Bylaws, to be qualified for nomination for election or appointment to the Board of Directors, a person must have not attained the age of sixty-nine years at the time of such election or appointment, provided however, the Nominating and Corporate Governance Committee may waive such qualification as to a particular candidate otherwise qualified to serve as a director upon a good faith determination
by such committee that such a waiver is in the best interests of the Company and its stockholders. The Chairman of the Board and the Chief Executive Officer shall not be qualified to continue to serve as directors upon the termination of their service in those offices for any reason.
Section 4. MEETINGS. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Board of Directors, the Chief Executive Officer or the President.
Section 5. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the Chief Executive Officer or the President, and shall be called upon the written request of a majority of the directors.
Section 6. QUORUM. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors.
Section 7. NOTICE. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting.
Section 8. VACANCIES. In the event of the death, resignation, removal, inability to act or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified.
Section 9. ORGANIZATION MEETING. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, and shall elect from its own members a Chairman of the Board, a Chief Executive Officer and a President, who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Chief Financial Officer, who may be the same person, and may appoint at any time such committees as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. The Board of Directors, the Executive Committee or another committee designated by the Board of Directors may elect or appoint such other officers as they may deem advisable.
Section 10. REMOVAL. The Board of Directors may at any time remove, with or without cause, any member of any committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor.
Section 11. RESPONSIBILITY OF OFFICERS. The Board of Directors may designate an officer to be in charge of such departments or divisions of the Company as it may deem advisable.
Section 12. PARTICIPATION IN MEETINGS. The Board of Directors or any committee of the Board of Directors may participate in a meeting of the Board of Directors or such committee, as the case may be, by conference telephone, video facilities or other communications equipment. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all of the members of the Board of Directors or the committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee.
ARTICLE 3
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. EXECUTIVE COMMITTEE.
(A) The Executive Committee shall be composed of not more than nine (9) members, who shall be selected by the Board of Directors from its own members, and who shall hold office at the pleasure of the Board of Directors.
(B) The Executive Committee shall have and may exercise, to the fullest extent permitted by law, all of the powers of the Board of Directors when it is not in session to transact all business for and on behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting.
(E) In the event of an emergency of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these Bylaws, any two available members of the Executive Committee as constituted immediately prior to such emergency shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article 3 of these Bylaws. In the event of the unavailability, at such time, of a
minimum of two members of the Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This Bylaw shall be subject to implementation by resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these Bylaws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementing resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this Section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these Bylaws.
Section 2. AUDIT COMMITTEE.
(A) The Audit Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision over the Audit Services Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Services Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Section 3. COMPENSATION COMMITTEE.
(A) The Compensation Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Compensation Committee shall in general advise upon all matters of policy concerning compensation, including salaries and employee benefits.
(C) The Compensation Committee shall meet whenever and wherever its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
SECTION 4. NOMINATING AND CORPORATE GOVERNANCE COMMITTEE.
(A) The Nominating and Corporate Governance Committee shall be composed of not more than five members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Nominating and Corporate Governance Committee shall provide counsel and make recommendations to the Chairman of the Board and the full Board with respect to the performance of the Chairman of the Board and the Chief Executive Officer, candidates for membership on the Board of Directors and its committees, matters of corporate governance, succession planning for the Company's executive management and significant shareholder relations issues.
(C) The Nominating and Corporate Governance Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President, or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Section 5. OTHER COMMITTEES. The Company may have such other committees with such powers as the Board may designate from time to time by resolution or by an amendment to these Bylaws.
Section 6. ASSOCIATE DIRECTORS.
(A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve at the pleasure of the Board of Directors.
(B) Associate directors shall be entitled to attend all meetings of directors and participate in the discussion of all matters brought to the Board of Directors, but will not have a right to vote.
Section 7. ABSENCE OR DISQUALIFICATION OF ANY MEMBER OF A COMMITTEE. In the absence or disqualification of any member of any committee created under Article III of these Bylaws, the
member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
ARTICLE 4
OFFICERS
Section 1. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at all meetings of the Board of Directors and shall have such further authority and powers and shall perform such duties the Board of Directors may assign to him from time to time.
Section 2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall have the powers and duties pertaining to the office of Chief Executive Officer conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board.
Section 3. PRESIDENT. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board and the Chief Executive Officer, the President shall have the powers and duties of the Chairman of the Board.
Section 4. DUTIES. The Chairman of the Board, the Chief Executive Officer or the President, as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office.
Section 5. VICE PRESIDENTS. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all of the duties of the Chairman of the Board, the Chief Executive Officer and/or the President and such other powers and duties incident to their respective offices or as the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President or the officer in charge of the department or division to which they are assigned may assign to them from time to time.
Section 6. SECRETARY. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the committees thereof, to the keeping of accurate minutes of all such meetings, recording the same in the minute books of the Company and in general notifying the Board of Directors of material matters affecting the Company on a timely basis. In addition to the other notice requirements of these Bylaws and as may be
practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any such meeting. He shall have custody of the corporate seal, affix the same to any documents requiring such corporate seal, attest the same and perform other duties incident to his office.
Section 7. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all transactions of the Company. He shall have general supervision of the expenditures of the Company and periodically shall report to the Board of Directors the condition of the Company, and perform such other duties incident to his office or as the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President may assign to him from time to time.
Section 8. CONTROLLER. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors or the Audit Committee at appropriate times a report relating to the general condition and internal operations of the Company and perform other duties incident to his office.
There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller.
Section 9. AUDIT OFFICERS. The officer designated by the Board of Directors to be in charge of the Audit Services Division of the Company, with such title as the Board of Directors shall prescribe, shall report to and be directly responsible to the Audit Committee and the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Services Division.
Section 10. OTHER OFFICERS. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office of Assistant Secretary of the Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to which they are assigned.
Section 11. POWERS AND DUTIES OF OTHER OFFICERS. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, the Chairman of the Board, the
Chief Executive Officer or the President and the officer in charge of the department or division to which they are assigned.
Section 12. NUMBER OF OFFICES. Any one or more offices of the Company may be held by the same person, except that (A) no individual may hold more than one of the offices of Chief Financial Officer, Controller or Audit Officer and (B) none of the Chairman of the Board, the Chief Executive Officer or the President may hold any office mentioned in Section 12(A).
ARTICLE 5
STOCK AND STOCK CERTIFICATES
Section 1. TRANSFER. Shares of stock shall be transferable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. CERTIFICATES. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Company by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Company, certifying the number of shares owned by him in the Company. The corporate seal affixed thereto, and any of or all the signatures on the certificate, may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee.
Section 3. RECORD DATE. The Board of Directors is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of any dividend, or to any allotment of rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days preceding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent.
ARTICLE 6
SEAL
The corporate seal of the Company shall be in the following form:
Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware."
ARTICLE 7
FISCAL YEAR
The fiscal year of the Company shall be the calendar year.
ARTICLE 8
EXECUTION OF INSTRUMENTS OF THE COMPANY
The Chairman of the Board, the Chief Executive Officer, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as though expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE 9
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be authorized by the Company to perform such special services as the Board of Directors may from time to time determine in accordance with any guidelines the Board of Directors may adopt for such services, and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors.
ARTICLE 10
INDEMNIFICATION
Section 1. PERSONS COVERED. The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director of the Company or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or non-profit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Company shall be required to indemnify such a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors.
The Company may indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or threatened to be made a party or is otherwise involved in any proceeding by reason of the fact that he, or a person for whom he is the legal representative, is or was an officer, employee or agent of the Company or a director, officer, employee or agent of a subsidiary or affiliate of the Company, against all liability and loss suffered and expenses reasonably incurred by such person. The Company may indemnify any such person in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. ADVANCE OF EXPENSES. The Company shall pay the expenses incurred in defending any proceeding involving a person who is or may be indemnified pursuant to Section 1 in advance of its final disposition, provided, however, that the payment of expenses incurred by such a person in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by that person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article 10 or otherwise.
Section 3. CERTAIN RIGHTS. If a claim under this Article 10 for (A) payment of expenses or (B) indemnification by a director or person who is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, is not paid in full within sixty days after a written claim therefor has been received by the Company, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Company shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
Section 4. NON-EXCLUSIVE. The rights conferred on any person by this Article 10 shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. REDUCTION OF AMOUNT. The Company's obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity.
Section 6. EFFECT OF MODIFICATION. Any amendment, repeal or modification of the foregoing provisions of this Article 10 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such amendment, repeal or modification.
ARTICLE 11
AMENDMENTS TO THE BYLAWS
These Bylaws may be altered, amended or repealed, in whole or in part, and any new Bylaw or Bylaws adopted at any regular or special meeting of the Board of Directors by a vote of a majority of all the members of the Board of Directors then in office.
ARTICLE 12
MISCELLANEOUS
Whenever used in these Bylaws, the singular shall include the plural, the plural shall include the singular unless the context requires otherwise and the use of either gender shall include both genders.
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 26, 2004 By: /s/ David A. Vanaskey, Jr.
--------------------------
Name: David A. Vanaskey, Jr.
Title: Vice President
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EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------------------------ -------------------
Name of Bank City
in the State of DELAWARE , at the close of business on March 31, 2004.
------------
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ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................................173,842
Interest-bearing balances................................................................................0
Held-to-maturity securities.................................................................................. 3,355
Available-for-sale securities.............................................................................1,624,384
Federal funds sold in domestic offices......................................................................485,666
Securities purchased under agreements to resell..............................................................13,700
Loans and lease financing receivables:
Loans and leases held for sale. . . . . . . . . . . . . . 0
Loans and leases, net of unearned income. . . . . . . 5,839,156
LESS: Allowance for loan and lease losses. . . . . . 80,750
Loans and leases, net of unearned income, allowance, and reserve.................................5,758,406
Assets held in trading accounts...................................................................................0
Premises and fixed assets (including capitalized leases)....................................................141,663
Other real estate owned.................................................................................... 1,061
Investments in unconsolidated subsidiaries and associated companies...........................................1,755
Customers' liability to this bank on acceptances outstanding......................................................0
Intangible assets:
a. Goodwill.......................................................................................... 157
b. Other intangible assets........................................................................ 11,615
Other assets............................................................................................... 151,998
Total assets..............................................................................................8,367,602
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CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices.......................................................................................6,716,153
Noninterest-bearing . . . . . . . . 1,056,474
Interest-bearing. . . . . . . . . . 5,659,679
Federal funds purchased in domestic offices............................................................... 79,544
Securities sold under agreements to repurchase............................................................. 190,877
Trading liabilities (from Schedule RC-D)..........................................................................0
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases:..............596,427
Bank's liability on acceptances executed and outstanding..........................................................0
Subordinated notes and debentures.................................................................................0
Other liabilities (from Schedule RC-G)......................................................................116,370
Total liabilities.........................................................................................7,699,371
EQUITY CAPITAL
Perpetual preferred stock and related surplus.....................................................................0
Common Stock....................................................................................................500
Surplus (exclude all surplus related to preferred stock)....................................................112,358
a. Retained earnings.......................................................................................565,939
b. Accumulated other comprehensive income.............................................................. (10,566)
Total equity capital........................................................................................668,231
Total liabilities, limited-life preferred stock, and equity capital.......................................8,367,602
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)
DELAWARE 51-0055023
(State or other jurisdiction or incorporation or organization) (I.R.S. Employer Identification No.)
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RODNEY SQUARE NORTH
1100 NORTH MARKET STREET
WILMINGTON, DELAWARE 19890
(Address of principal executive offices)
CYNTHIA L. CORLISS
VICE PRESIDENT AND TRUST COUNSEL
WILMINGTON TRUST COMPANY
RODNEY SQUARE NORTH
WILMINGTON, DELAWARE 19890
(302) 651-8516
(Name, address, including zip code, and telephone number, including area code, of agent of service)
DIME COMMUNITY BANCSHARES, INC.
(Exact name of registrants as specified in its charter)
DELAWARE
(State or other jurisdiction or incorporation or organization) (I.R.S. Employer Identification No.)
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209 HAVEMEYER STREET
BROOKLYN, NEW YORK 11211
TELEPHONE: 712-782-6200
(Address, including zip code, and telephone number, including area code, of registrants' principal executive offices)
SERIES B GUARANTEE AGREEMENT
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA |
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the certificate of authority of Wilmington Trust Company to commence business and the authorization of Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 26th day of July, 2004.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Rosemary Kennard By: /s/ David A Vanaskey, Jr.
-------------------------- --------------------------------
Assistant Secretary Name: David A. Vanaskey, Jr.
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for
money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of
any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize
such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in
said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in
proportion to the number of shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall
determine and on such terms and for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and servants as may be provided in the By-Laws as they may from time to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation or By-Laws if such business combination has been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or other entity.
(2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such
business combination, or immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 2003
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. Annual Meeting. The annual meeting of stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time or place as may be designated by resolution by the Board of Directors.
Section 2. Special Meetings. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President.
Section 3. Notice. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting.
Section 4. Quorum. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a smaller number of shares may adjourn from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each share of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein.
ARTICLE 2
DIRECTORS
Section 1. Management. The affairs and business of the Company shall be managed by or under the direction of the Board of Directors.
Section 2. Number. The authorized number of directors that shall constitute the Board of Directors shall be fixed from time to time by or pursuant to a resolution passed by a majority of the Board of Directors within the parameters set by the Charter of the Company. No more than two directors may also be employees of the Company or any affiliate thereof.
Section 3. Qualification. In addition to any other provisions of these Bylaws, to be qualified for nomination for election or appointment to the Board of Directors, a person must have not attained the age of sixty-nine years at the time of such election or appointment, provided however, the Nominating and Corporate Governance Committee may waive such qualification as to a particular candidate otherwise qualified to serve as a director upon a good faith determination
by such committee that such a waiver is in the best interests of the Company and its stockholders. The Chairman of the Board and the Chief Executive Officer shall not be qualified to continue to serve as directors upon the termination of their service in those offices for any reason.
Section 4. Meetings. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Board of Directors, the Chief Executive Officer or the President.
Section 5. Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the Chief Executive Officer or the President, and shall be called upon the written request of a majority of the directors.
Section 6. Quorum. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors.
Section 7. Notice. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting.
Section 8. Vacancies. In the event of the death, resignation, removal, inability to act or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified.
Section 9. Organization Meeting. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, and shall elect from its own members a Chairman of the Board, a Chief Executive Officer and a President, who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Chief Financial Officer, who may be the same person, and may appoint at any time such committees as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. The Board of Directors, the Executive Committee or another committee designated by the Board of Directors may elect or appoint such other officers as they may deem advisable.
Section 10. Removal. The Board of Directors may at any time remove, with or without cause, any member of any committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor.
Section 11. Responsibility of Officers. The Board of Directors may designate an officer to be in charge of such departments or divisions of the Company as it may deem advisable.
Section 12. Participation in Meetings. The Board of Directors or any committee of the Board of Directors may participate in a meeting of the Board of Directors or such committee, as the case may be, by conference telephone, video facilities or other communications equipment. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all of the members of the Board of Directors or the committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee.
ARTICLE 3
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. Executive Committee.
(A) The Executive Committee shall be composed of not more than nine (9) members, who shall be selected by the Board of Directors from its own members, and who shall hold office at the pleasure of the Board of Directors.
(B) The Executive Committee shall have and may exercise, to the fullest extent permitted by law, all of the powers of the Board of Directors when it is not in session to transact all business for and on behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting.
(E) In the event of an emergency of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these Bylaws, any two available members of the Executive Committee as constituted immediately prior to such emergency shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article 3 of these Bylaws. In the event of the unavailability, at such time, of a
minimum of two members of the Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This Bylaw shall be subject to implementation by resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these Bylaws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementing resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this Section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these Bylaws.
Section 2. Audit Committee.
(A) The Audit Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision over the Audit Services Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Services Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Section 3. Compensation Committee.
(A) The Compensation Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Compensation Committee shall in general advise upon all matters of policy concerning compensation, including salaries and employee benefits.
(C) The Compensation Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
SECTION 4. NOMINATING AND CORPORATE GOVERNANCE COMMITTEE.
(A) The Nominating and Corporate Governance Committee shall be composed of not more than five members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Nominating and Corporate Governance Committee shall provide counsel and make recommendations to the Chairman of the Board and the full Board with respect to the performance of the Chairman of the Board and the Chief Executive Officer, candidates for membership on the Board of Directors and its committees, matters of corporate governance, succession planning for the Company's executive management and significant shareholder relations issues.
(C) The Nominating and Corporate Governance Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President, or a majority of the Committee's members shall deem it to be proper for the transaction of its business. A majority of the Committee's members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Section 5. Other Committees. The Company may have such other committees with such powers as the Board may designate from time to time by resolution or by an amendment to these Bylaws.
Section 6. Associate Directors.
(A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve at the pleasure of the Board of Directors.
(B) Associate directors shall be entitled to attend all meetings of directors and participate in the discussion of all matters brought to the Board of Directors, but will not have a right to vote.
Section 7. Absence or Disqualification of Any Member of a Committee. In the absence or disqualification of any member of any committee created under Article III of these Bylaws, the
member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
ARTICLE 4
OFFICERS
Section 1. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the Board of Directors and shall have such further authority and powers and shall perform such duties the Board of Directors may assign to him from time to time.
Section 2. Chief Executive Officer. The Chief Executive Officer shall have the powers and duties pertaining to the office of Chief Executive Officer conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board.
Section 3. President. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board and the Chief Executive Officer, the President shall have the powers and duties of the Chairman of the Board.
Section 4. Duties. The Chairman of the Board, the Chief Executive Officer or the President, as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office.
Section 5. Vice Presidents. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all of the duties of the Chairman of the Board, the Chief Executive Officer and/or the President and such other powers and duties incident to their respective offices or as the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President or the officer in charge of the department or division to which they are assigned may assign to them from time to time.
Section 6. Secretary. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the committees thereof, to the keeping of accurate minutes of all such meetings, recording the same in the minute books of the Company and in general notifying the Board of Directors of material matters affecting the Company on a timely basis. In addition to the other notice requirements of these Bylaws and as may be
practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any such meeting. He shall have custody of the corporate seal, affix the same to any documents requiring such corporate seal, attest the same and perform other duties incident to his office.
Section 7. Chief Financial Officer. The Chief Financial Officer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all transactions of the Company. He shall have general supervision of the expenditures of the Company and periodically shall report to the Board of Directors the condition of the Company, and perform such other duties incident to his office or as the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or the President may assign to him from time to time.
Section 8. Controller. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors or the Audit Committee at appropriate times a report relating to the general condition and internal operations of the Company and perform other duties incident to his office.
There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller.
Section 9. Audit Officers. The officer designated by the Board of Directors to be in charge of the Audit Services Division of the Company, with such title as the Board of Directors shall prescribe, shall report to and be directly responsible to the Audit Committee and the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Services Division.
Section 10. Other Officers. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office of Assistant Secretary of the Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to which they are assigned.
Section 11. Powers and Duties of Other Officers. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, the Chairman of the Board, the
Chief Executive Officer or the President and the officer in charge of the department or division to which they are assigned.
Section 12. Number of Offices. Any one or more offices of the Company may be held by the same person, except that (A) no individual may hold more than one of the offices of Chief Financial Officer, Controller or Audit Officer and (B) none of the Chairman of the Board, the Chief Executive Officer or the President may hold any office mentioned in Section 12(A).
ARTICLE 5
STOCK AND STOCK CERTIFICATES
Section 1. Transfer. Shares of stock shall be transferable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Company by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Company, certifying the number of shares owned by him in the Company. The corporate seal affixed thereto, and any of or all the signatures on the certificate, may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee.
Section 3. Record Date. The Board of Directors is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of any dividend, or to any allotment of rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days preceding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent.
ARTICLE 6
SEAL
The corporate seal of the Company shall be in the following form:
Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware."
ARTICLE 7
FISCAL YEAR
The fiscal year of the Company shall be the calendar year.
ARTICLE 8
EXECUTION OF INSTRUMENTS OF THE COMPANY
The Chairman of the Board, the Chief Executive Officer, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as though expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE 9
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be authorized by the Company to perform such special services as the Board of Directors may from time to time determine in accordance with any guidelines the Board of Directors may adopt for such services, and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors.
ARTICLE 10
INDEMNIFICATION
Section 1. Persons Covered. The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director of the Company or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or non-profit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Company shall be required to indemnify such a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors.
The Company may indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or threatened to be made a party or is otherwise involved in any proceeding by reason of the fact that he, or a person for whom he is the legal representative, is or was an officer, employee or agent of the Company or a director, officer, employee or agent of a subsidiary or affiliate of the Company, against all liability and loss suffered and expenses reasonably incurred by such person. The Company may indemnify any such person in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. Advance of Expenses. The Company shall pay the expenses incurred in defending any proceeding involving a person who is or may be indemnified pursuant to Section 1 in advance of its final disposition, provided, however, that the payment of expenses incurred by such a person in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by that person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article 10 or otherwise.
Section 3. Certain Rights. If a claim under this Article 10 for (A) payment of expenses or (B) indemnification by a director or person who is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, is not paid in full within sixty days after a written claim therefor has been received by the Company, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Company shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
Section 4. Non-Exclusive. The rights conferred on any person by this Article 10 shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. Reduction of Amount. The Company's obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity.
Section 6. Effect of Modification. Any amendment, repeal or modification of the foregoing provisions of this Article 10 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such amendment, repeal or modification.
ARTICLE 11
AMENDMENTS TO THE BYLAWS
These Bylaws may be altered, amended or repealed, in whole or in part, and any new Bylaw or Bylaws adopted at any regular or special meeting of the Board of Directors by a vote of a majority of all the members of the Board of Directors then in office.
ARTICLE 12
MISCELLANEOUS
Whenever used in these Bylaws, the singular shall include the plural, the plural shall include the singular unless the context requires otherwise and the use of either gender shall include both genders.
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 26, 2004 By: /s/ David A. Vanaskey, Jr.
------------------------------
Name: David A. Vanaskey, Jr.
Title: Vice President
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EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------------------------- --- ------------------------
Name of Bank City
in the State of DELAWARE , at the close of business on March 31, 2004.
--------
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ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................................173,842
Interest-bearing balances.............................................................................. 0
Held-to-maturity securities.................................................................................. 3,355
Available-for-sale securities.............................................................................1,624,384
Federal funds sold in domestic offices......................................................................485,666
Securities purchased under agreements to resell..............................................................13,700
Loans and lease financing receivables:
Loans and leases held for sale. . . . . . . . . . . . . . . . . . . . . 0
Loans and leases, net of unearned income. . . . . . . . . . . . . . . . 5,839,156
LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . 80,750
Loans and leases, net of unearned income, allowance, and reserve.................................5,758,406
Assets held in trading accounts...................................................................................0
Premises and fixed assets (including capitalized leases)....................................................141,663
Other real estate owned.................................................................................... 1,061
Investments in unconsolidated subsidiaries and associated companies...........................................1,755
Customers' liability to this bank on acceptances outstanding......................................................0
Intangible assets:
a. Goodwill.......................................................................................... 157
b. Other intangible assets........................................................................ 11,615
Other assets............................................................................................... 151,998
Total assets..............................................................................................8,367,602
CONTINUED ON NEXT PAGE
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14
Deposits:
In domestic offices.......................................................................................6,716,153
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . 1,056,474
Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . 5,659,679
Federal funds purchased in domestic offices............................................................... 79,544
Securities sold under agreements to repurchase............................................................. 190,877
Trading liabilities (from Schedule RC-D)..........................................................................0
Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases:...................................................................................596,427
Bank's liability on acceptances executed and outstanding..........................................................0
Subordinated notes and debentures.................................................................................0
Other liabilities (from Schedule RC-G)......................................................................116,370
Total liabilities.........................................................................................7,699,371
EQUITY CAPITAL
Perpetual preferred stock and related surplus.....................................................................0
Common Stock....................................................................................................500
Surplus (exclude all surplus related to preferred stock)....................................................112,358
a. Retained earnings.......................................................................................565,939
b. Accumulated other comprehensive income.............................................................. (10,566)
Total equity capital........................................................................................668,231
Total liabilities, limited-life preferred stock, and equity capital.......................................8,367,602
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LETTER OF TRANSMITTAL
DIME COMMUNITY CAPITAL TRUST I
OFFER TO EXCHANGE ITS
7.0% CAPITAL SECURITIES, SERIES B
("EXCHANGE CAPITAL SECURITIES")
(LIQUIDATION AMOUNT $1,000 PER EXCHANGE CAPITAL SECURITY) WHICH
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
7.0% CAPITAL SECURITIES, SERIES A
("ORIGINAL CAPITAL SECURITIES")
(LIQUIDATION AMOUNT $1,000 PER ORIGINAL CAPITAL SECURITY)
UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN,
BY
DIME COMMUNITY BANCSHARES, INC.
PURSUANT TO THE PROSPECTUS DATED ________, 2004
(AS THE SAME MAY BE AMENDED OR SUPPLEMENTED, THE "PROSPECTUS")
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WILMINGTON TRUST COMPANY,
AS INSTITUTIONAL TRUSTEE OF DIME COMMUNITY CAPITAL TRUST I
BY HAND, OVERNIGHT DELIVERY,
FACSIMILE TRANSMISSION NUMBER COURIER OR CERTIFIED MAIL: CONFIRM BY TELEPHONE:
(302) 636-4145 Wilmington Trust Company, (302) 636-6470
(Eligible Instiutions Only) as Exchange Agent
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate
Capital Markets --
Dime Community Capital Trust I Exchange
Offer
FOR INFORMATION:
(302) 636-6470
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DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning given them in the Prospectus. As used herein, the term "Holder" means a holder of Original Capital Securities, including any participant ("DTC Participant") in the book-entry transfer facility system of The Depository Trust Company ("DTC") whose name appears on a security position listing as the owner of the Original Capital Securities. As used herein, the term "Certificates" means physical certificates representing Original Capital Securities.
To participate in the Exchange Offer (as defined below), Holders must tender by (a) book-entry transfer pursuant to the procedures set forth in the Prospectus under "The Exchange Offer -- Procedures for Tendering Original Capital Securities," or (b) forwarding Certificates herewith. Holders who are DTC Participants tendering by book-entry transfer must execute such tender through the Automated Tender Offer Program ("ATOP") of DTC. A Holder using ATOP should transmit its acceptance to DTC on or prior to the Expiration Date. DTC will verify such acceptance, execute a book-entry transfer of the tendered Original Capital Securities into the Exchange Agent's account at DTC and then send to the Exchange Agent confirmation of such book-entry transfer (a "Book-Entry Confirmation"), including an agent's message ("Agent's Message") confirming that DTC has received an express acknowledgement from such Holder that such Holder has received and agrees to be bound by this Letter of Transmittal and that the Trust and the Corporation may enforce this Letter of Transmittal against such Holder. The Book-Entry Confirmation must be received by the Exchange Agent in order for the tender relating thereto to be effective. Book-entry transfer to DTC in accordance with DTC's procedures does not constitute delivery of the Book-Entry Confirmation to the Exchange Agent
If the tender is not made through ATOP, then Certificates, as well as this Letter of Transmittal (or facsimile thereof), properly completed and duly executed, with any required signature guarantees, and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at its address set forth herein on or prior to the Expiration Date in order for such tender to be effective.
Holders of Original Capital Securities who cannot complete the procedures for delivery by book-entry transfer of such Original Capital Securities on a timely basis or who cannot deliver their Certificates for such Original Capital Securities and all other required documents to the Exchange Agent on or prior to the Expiration Date, must, in order to participate in the Exchange Offer, tender their Original Capital Securities according to the guaranteed delivery procedures set forth in the Prospectus under "The Exchange Offer -- Procedures for Tendering Original Capital Securities -- Guaranteed Delivery."
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT IF DELIVERY IS BY MAIL, WE RECOMMEND USING REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED OR OVERNIGHT DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
ALL TENDERING HOLDERS COMPLETE THIS BOX:
-------------------------------------------------------------------------------------------------------
DESCRIPTION OF ORIGINAL CAPITAL SECURITIES TENDERED
(SEE INSTRUCTIONS 3 AND 4)
-------------------------------------------------------------------------------------------------------
Name Exactly as it Appears on Your Original
Capital Security Certificate(s)
and Address of Registered Holder Original Capital Securities Tendered
(Please fill in, if blank) (Please list below-- attach additional list if necessary)
----------------------------------------- ------------------------------------------------------------
Aggregate
Liquidation Liquidation Amount
Amount of of Original Capital
Certificate Original Capital Securities Tendered
Number(s)* Securities (If Less Than All)**
------------------ ------------------- ---------------------
------------------ ------------------- ---------------------
------------------ ------------------- ---------------------
------------------ ------------------- ---------------------
------------------ ------------------- ---------------------
------------------ ------------------- ---------------------
------------------ ------------------- ---------------------
Total
-------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Original Capital Securities may be tendered in whole or in part in denominations of $100,000 and
integral multiples of $1,000 in excess thereof, provided that if any Original Capital Securities
are tendered for exchange in part, the untendered liquidation amount thereof must be $100,000 or
any integral multiple of $1,000 in excess thereof. All Original Capital Securities held shall be
deemed tendered unless a lesser number is specified in this column. See Instruction 4.
-------------------------------------------------------------------------------------------------------
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BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY
/_/ CHECK HERE IF TENDERED ORIGINAL CAPITAL SECURITIES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC, AND COMPLETE THE FOLLOWING:
Name of Tendering Institution: ____________________________________________
DTC Account Number: _______________________________________________________
Transaction Code Number: _________________________________________________
/_/ CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED ORIGINAL CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name of Registered Holder(s): ____________________________________________
Window Ticket Number (if any): ___________________________________________
Date of Execution of Notice of Guaranteed Delivery: ______________________
Name of Institution which Guaranteed Delivery: ___________________________
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution ________________________________________
DTC Account Number ___________________________________________________
Transaction Code Number ______________________________________________
/_/ CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE ORIGINAL CAPITAL
SECURITIES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
TRADING ACTIVITIES AND WISH TO RECEIVE TEN ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ____________________________________________________________________
Address: __________________________________________________________________
Area Code and Telephone Number ____________________________________________
Contact Person: ___________________________________________________________
/_/ CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NONEXCHANGED OR NONTENDERED ORIGINAL CAPITAL SECURITIES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
Ladies and Gentlemen:
The undersigned hereby tenders to Dime Community Capital Trust I, a trust formed under the laws of the State of Delaware (the "Trust"), and Dime Community Bancshares, Inc., a Delaware corporation (the "Corporation"), the Original Capital Securities described above in exchange for a like aggregate liquidation amount of the Trust's Exchange Capital Securities which have been registered under the Securities Act of 1933, as amended (the "Securities Act"), upon the terms and subject to the conditions set forth in the Prospectus, receipt of which is hereby acknowledged, and in this Letter of Transmittal (which, together with the Prospectus, constitute the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any portion of the Original Capital Securities tendered herewith in accordance with the terms and conditions of the Exchange Offer (including, if the Exchange Offer is extended or amended, the terms and conditions of any such extension or amendment), the undersigned hereby sells, assigns and transfers to or upon the order of the Trust all right, title and interest in and to such Original Capital Securities as are being tendered herewith. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as its agent and attorney-in-fact (with full knowledge that the Exchange Agent is also acting as agent of the Corporation and the Trust in connection with the Exchange Offer) with respect to the tendered Original Capital Securities, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest) subject only to the right of withdrawal described in the Prospectus, to (i) deliver Certificates for Original Capital Securities to the Corporation or the Trust together with all accompanying evidences of transfer and authenticity to the Trust, upon receipt by the Exchange Agent, as the undersigned's agent, of the Exchange Capital Securities to be issued in exchange for such Original Capital Securities, (ii) present Certificates for such Original Capital Securities for transfer, and to transfer the Original Capital Securities on the books of the Trust, and (iii) receive for the account of the Trust all benefits and otherwise exercise all rights of beneficial ownership of such Original Capital Securities, all in accordance with the terms and conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE ORIGINAL CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES, AND THAT THE ORIGINAL CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE TRUST OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE ORIGINAL CAPITAL SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered Holder(s) of the Original Capital Securities tendered hereby should be printed in the box entitled "Description of Original Capital Securities" above, if they are not already set forth in such box, as they appear on the Certificates representing such Original Capital Securities or on the records of DTC, as the case may be. The Certificate number(s) of any such Certificates and the liquidation amount of such Original Capital Securities should be specified in such box as indicated.
The undersigned understands that tenders of Original Capital Securities pursuant to any one of the procedures described in "The Exchange Offer-- Procedures for Tendering Original Capital Securities" in the Prospectus and in the instructions attached hereto will, upon the Corporation's and the Trust's acceptance for exchange of such tendered Original Capital Securities, constitute a binding agreement between the undersigned, the Corporation and the Trust upon the terms and subject to the conditions of the Exchange Offer.
The undersigned recognizes that, under certain circumstances set forth in the Prospectus, the Corporation and the Trust may not be required to accept for exchange any of the Original Capital Securities tendered hereby.
Unless otherwise indicated in the box entitled "Special Issuance Instructions" below, the undersigned hereby directs that the Exchange Capital Securities be issued in the name(s) of the undersigned or credited to the account at DTC indicated above in the case of a book-entry transfer of Original Capital Securities.
If any Original Capital Securities are submitted for more Original Capital Securities than are tendered or accepted for exchange, then, without expense to the tendering Holder, promptly following the expiration or termination of the Exchange Offer, such non-exchanged or non-tendered Original Capital Securities will, if evidenced by Certificates, be returned, or will, if evidenced by book-entry, be credited to the account at DTC indicated above. If applicable, substitute Certificates representing non-exchanged Original Capital Securities will be issued to the undersigned or non-exchanged Original Capital Securities will be credited to the account at DTC indicated above in the case of a book-entry transfer of Original Capital Securities.
Unless otherwise indicated under "Special Delivery Instructions," certificates for Original Capital Securities and for Exchange Capital Securities will be delivered to the undersigned at the address shown below the undersigned's signature.
BY TENDERING ORIGINAL CAPITAL SECURITIES AND EXECUTING THIS LETTER OF TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (1) THE UNDERSIGNED IS NOT AN "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE CORPORATION OR THE TRUST, (2) ANY EXCHANGE CAPITAL SECURITIES TO BE RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS, (3) THE UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF EXCHANGE CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER AND (4) IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN, AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF SUCH EXCHANGE CAPITAL SECURITIES. BY TENDERING ORIGINAL CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF TRANSMITTAL, A HOLDER OF ORIGINAL CAPITAL SECURITIES THAT IS A BROKER-DEALER REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE COMMISSION TO THIRD PARTIES, THAT (A) SUCH ORIGINAL CAPITAL SECURITIES ARE HELD BY SUCH BROKER-DEALER ONLY AS A NOMINEE, OR (B) SUCH ORIGINAL CAPITAL SECURITIES WERE ACQUIRED BY IT FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER THE PROSPECTUS MEETING THE REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH EXCHANGE CAPITAL SECURITIES (PROVIDED THAT BY SO ACKNOWLEDGING AND BY DELIVERING THE PROSPECTUS, IT WILL NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
THE CORPORATION AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS MAY BE USED IN CONNECTION WITH RESALES OF EXCHANGE CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR ORIGINAL CAPITAL SECURITIES BY A BROKER-DEALER WHO ACQUIRED ORIGINAL CAPITAL SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") FOR A PERIOD ENDING 90 DAYS AFTER THE EXPIRATION DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH EXCHANGE CAPITAL SECURITIES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER.
IN THAT REGARD, EACH PARTICIPATING BROKER-DEALER, BY TENDERING SUCH ORIGINAL CAPITAL SECURITIES AND EXECUTING THIS LETTER OF TRANSMITTAL OR BY TENDERING THROUGH BOOK-ENTRY TRANSFER IN LIEU THEREOF, AGREES THAT, UPON RECEIPT OF NOTICE FROM THE CORPORATION OR THE TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE OF EXCHANGE CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL (1) THE CORPORATION AND THE TRUST HAVE AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR OMISSION AND HAVE FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR (2) THE CORPORATION OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF THE EXCHANGE CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE. IF THE CORPORATION OR THE TRUST GIVES SUCH NOTICE TO SUSPEND THE SALE OF THE EXCHANGE CAPITAL SECURITIES, THEY SHALL EXTEND THE 90-DAY PERIOD REFERRED TO ABOVE DURING WHICH PARTICIPATING BROKER-DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN CONNECTION WITH THE RESALE OF EXCHANGE CAPITAL SECURITIES BY THE NUMBER OF DAYS DURING THE PERIOD FROM AND INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO AND INCLUDING THE DATE ON WHICH (1) PARTICIPATING BROKER-DEALERS SHALL HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO PERMIT RESALES OF THE EXCHANGE CAPITAL SECURITIES OR (2) THE CORPORATION OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF EXCHANGE CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
AS A RESULT, A PARTICIPATING BROKER-DEALER WHO INTENDS TO USE THE PROSPECTUS IN CONNECTION WITH RESALES OF EXCHANGE CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR ORIGINAL CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER MUST NOTIFY THE CORPORATION AND THE TRUST, OR CAUSE THE CORPORATION AND THE TRUST TO BE NOTIFIED, ON OR PRIOR TO THE EXPIRATION DATE, THAT IT IS A PARTICIPATING BROKER-DEALER. SUCH NOTICE MAY BE GIVEN IN THE SPACE PROVIDED ABOVE OR MAY BE DELIVERED TO THE EXCHANGE AGENT AT THE ADDRESS SET FORTH IN THE PROSPECTUS UNDER "THE EXCHANGE OFFER -- EXCHANGE AGENT."
Holders of the Exchange Capital Securities will be entitled to receive cumulative Distributions arising from the payment of interest on the Junior Subordinated Debt Securities, accumulating from July 15, 2004, and payable quarterly in arrears on January 15th, April 15th, July 15th and October 15th of each year, commencing on October 15, 2004. The record dates will be the 15th calendar day immediately preceding any payment date. Because the Exchange Offer will be consummated after July 15, 2004, Distributions will be paid on the Original Capital Securities accumulated from and after March 19, 2004 through July 15, 2004, and the Exchange Capital Securities then will pay Distributions from and after July 15, 2004. The amount of each Distribution with respect to Exchange Capital Securities will include amounts accrued to, but excluding the date the Distribution is due. Because of the foregoing procedures regarding Distributions, the amount of the Distributions received by holders whose Original Capital Securities are accepted for exchange will not be affected by the exchange. The amount of Distributions payable for any period will be computed on the basis of the actual number of days elapsed in such period and a 360-day year of twelve 30-day months. In the event that any date on which Distributions are payable on the Exchange Capital Securities is not a Business Day (as defined below), payment of the Distribution payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect to any such delay), except that if such next succeeding Business Day falls in the next calendar year, such payment shall be made on the last Business Day of the calendar year, in each case with the same force and effect as if made on such date (each date on which Distributions are payable in accordance with the foregoing, a "Distribution Date"). A "Business Day" shall mean any day other than a Saturday, a Sunday or a day on which banking institutions in New York, New York or Wilmington, Delaware are authorized or required by law or executive order to remain closed.
The undersigned will, upon request, execute and deliver any additional documents deemed by the Corporation or the Trust to be necessary or desirable to complete the sale, assignment and transfer of the Original Capital Securities tendered hereby. All authority herein conferred or agreed to be conferred in this Letter of Transmittal shall survive the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, personal representatives, trustees in bankruptcy, legal representatives, successors and assigns of the undersigned. Except as stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF ORIGINAL CAPITAL SECURITIES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE ORIGINAL CAPITAL SECURITIES AS SET FORTH IN SUCH BOX.
HOLDER(S) SIGN HERE
(SEE ATTACHED INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON THE LAST PAGE)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered Holder(s) exactly as name(s) appear(s) on Certificate(s) for the Original Capital Securities hereby tendered or on the records of DTC, as the case may be, or by any person(s) authorized to become the registered Holder(s) by endorsements and documents transmitted herewith (including such opinions of counsel, certifications and other information as may be required by the Trust to comply with the restrictions on transfer applicable to the Original Capital Securities). If signature is by an attorney-in-fact, executor, administrator, trustee, guardian, officer of a corporation or another acting in a fiduciary capacity or representative capacity, set forth the signatory's full title. See Instructions 5.
Date: ______________________, 2004
Name(s): _______________________________________________________________________
(Please Print)
Capacity (full title): ________________________________________________________
Address: ______________________________________________________________________
Area Code and Telephone Number: ( ) _______________________________________
Tax Identification or Social Security No.: ___________________________________
GUARANTEE OF SIGNATURE(S)
(See Attached Instructions 2 and 5)
Authorized Signature: _________________________________________________________
Date: ________________________, 2004
Name of Firm: _________________________________________________________________
Capacity (full title): ________________________________________________________
(Please Print)
Address: ______________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number: ( ) _______________________________________
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SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6) (See Instructions 1, 5 and 6)
To be completed ONLY if Exchange Capital To be completed ONLY if certificates for Exchange
Securities or non-tendered or non-exchanged Capital Securities or non-tendered or non-exchanged
Original Capital Securities are to be issued in Original Capital Securities are to be sent to someone
the name of someone other than the registered other than the registered Holder(s) of the Original
Holder(s) of the Original Capital Securities Capital Securities whose name(s) appear(s) above, or
whose name(s) appear(s) above. such registered Holder(s) at an address other than that
shown above.
Issue: Mail:
/_/ Non-tendered or non-exchanged Original /_/ Non-tendered or non-exchanged Original Capital
Capital Securities to: Securities to:
/_/ Exchanged Capital Securities to: /_/ Exchanged Capital Securities to:
Name(s) _________________________________________ Name(s)
(Please Print) (Please Print)
Address _________________________________________ Address
(Include Zip Code) (Include Zip Code)
Area Code and Area Code and
Telephone Number ________________________________ Telephone Number
_________________________________________________
(Tax Identification or Social Security Number(s)) (Tax Identification or Social Security Number(s))
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. BOOK-ENTRY TRANSFER; DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY PROCEDURES. To tender in the Exchange Offer, Holders must tender by (a) forwarding Certificates herewith or (b) book-entry transfer pursuant to the procedures set forth in "The Exchange Offer -- Procedures for Tendering Original Capital Securities in the Prospectus. Holders who are DTC Participants tendering by book-entry transfer must execute such tender through DTC's ATOP system. A Holder using ATOP should transmit its acceptance to DTC on or prior to the Expiration Date. DTC will verify such acceptance, execute a book-entry transfer of the tendered Original Capital Securities into the Exchange Agent's account at DTC and then send to the Exchange Agent a book-entry confirmation, including an Agent's Message confirming that DTC has received an express acknowledgement from such Holder that such Holder has received and agrees to be bound by this Letter of Transmittal and that the Trust and the Corporation may enforce this Letter of Transmittal against such Holder. The Book-Entry Confirmation must be received by the Exchange Agent in order for the tender relating thereto to be effective. Book-entry transfer to DTC in accordance with DTC's procedure does not constitute delivery of the Book-Entry Confirmation to the Exchange Agent
If the tender is not made through ATOP, Certificates, as well as this Letter of Transmittal (or facsimile thereof), properly completed and duly executed, with any required signature guarantees and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at its address set forth herein on or prior to the Expiration Date in order for such tender to be effective.
Original Capital Securities may be tendered in whole or in part in the aggregate liquidation amount of $100,000 (100 Original Capital Securities) and integral multiples of $1,000 in excess thereof, provided that, if any, Original Capital Securities are tendered for exchange in part, the untendered aggregate liquidation amount thereof must be $100,000 (100 Original Capital Securities) or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Original Capital Securities and (i) whose Original Capital Securities are not immediately available or (ii) who cannot deliver their Original Capital Securities and all other required documents to the Exchange Agent on or prior to the Expiration Date or (iii) who cannot complete the procedures for delivery by book-entry transfer on a timely basis, may tender their Original Capital Securities by properly completing and duly executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth in the Prospectus under "The Exchange Offer -- Procedures for Tendering Original Capital Securities --Guaranteed Delivery." Pursuant to such procedures: (i) such tender must be made by or through an Eligible Institution (as defined below); (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form accompanying this Letter of Transmittal, must be received by the Exchange Agent on or prior to the Expiration Date; and (iii) (a) a Book-Entry Confirmation or (b) the certificates representing all tendered Original Capital Securities, in proper form for transfer, and any other documents required by this Letter of Transmittal, must be, in any case, received by the Exchange Agent within three Nasdaq National Market trading days after the date of execution of such Notice of Guaranteed Delivery, all as provided in the Prospectus under "The Exchange Offer -- Procedures for Tendering Original Capital Securities --Guaranteed Delivery."
A Notice of Guaranteed Delivery may be delivered by hand or transmitted by facsimile or mail to the Exchange Agent, and must include a guarantee by an Eligible Institution in the form set forth in such Notice. For Original Capital Securities to be properly tendered pursuant to the guaranteed delivery procedure, the Exchange Agent must receive a Notice of Guaranteed Delivery on or prior to the Expiration Date. As used herein and in the Prospectus, "Eligible Institution" means a firm or other entity identified in Rule 17Ad-15 under the Exchange Act as "an eligible guarantor institution," including (as such terms are defined therein) (i) a bank; (ii) a broker, dealer, municipal securities broker or dealer or government securities broker or dealer; (iii) a credit union; (iv) a national securities exchange, registered securities association or clearing agency; or (v) a savings association that is a participant in a Securities Transfer Association.
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Neither the Corporation nor the Trust will accept any alternative, conditional or contingent tenders. Each tendering Holder, by book-entry transfer through ATOP or execution of a Letter (or facsimile thereof), waives any right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered Holder(s) of Original Capital Securities tendered herewith, unless such Holder(s) has completed either the box entitled "Special Issuance Instructions" or the box entitled "Special Delivery Instructions" above, or
(ii) such Original Capital Securities are tendered for the account of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned "Description of Original Capital Securities" is inadequate, the Certificate number(s) and/or the liquidation amount of Original Capital Securities and any other required information should be listed on a separate signed schedule and attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Original Capital Securities will be accepted only in the aggregate liquidation amount of $100,000 (100 Original Capital Securities) and integral multiples of $1,000 in excess thereof, provided that if any Original Capital Securities are tendered for exchange in part, the untendered aggregate liquidation amount thereof must be $100,000 (100 Original Capital Securities) or any integral multiple of $1,000 in excess thereof. If less than all the Original Capital Securities are to be tendered, fill in the aggregate liquidation amount of Original Capital Securities that are to be tendered in the box entitled "Liquidation Amount of Original Capital Securities Tendered." If applicable, new Certificate(s) for the Original Capital Securities that were not tendered will be sent to the address designated herein by such Holder promptly after the Expiration Date. All Original Capital Securities represented by Certificates delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Original Capital Securities may be withdrawn at any time on or prior to the Expiration Date. In order for a withdrawal to be effective, a written or facsimile transmission of such notice of withdrawal must be timely received by the Exchange Agent at the address set forth above or in the Prospectus on or prior to the Expiration Date. Any such notice of withdrawal must specify the name of the person who tendered the Original Capital Securities to be withdrawn, the aggregate liquidation amount of Original Capital Securities to be withdrawn, and, if any Certificates for Original Capital Securities have been tendered, the name of the registered Holder of the Original Capital Securities as set forth on any such Certificates, if different from that of the person who tendered such Original Capital Securities. If Certificates for the Original Capital Securities have been delivered or otherwise identified to the Exchange Agent, then prior to the physical release of such Certificates, the tendering Holder must submit the serial numbers shown on the particular Certificates to be withdrawn and the signature on the notice of withdrawal must be guaranteed by an Eligible Institution, except in the case of Original Capital Securities tendered for the account of an Eligible Institution. If Original Capital Securities have been tendered pursuant to the procedures for book-entry transfer set forth in the Prospectus under "The Exchange Offer -- Procedures for Tendering Original Capital Securities," the notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawal of Original Capital Securities. Withdrawals of tenders of Original Capital Securities may not be rescinded. Original Capital Securities properly withdrawn will not be deemed validly tendered for purposes of the Exchange Offer, but may be retendered at any subsequent time on or prior to the Expiration Date by following the procedures described herein.
All questions as to the validity, form and eligibility (including time of receipt) of such withdrawal notices will be determined by Dime Community and the Trust, in our sole discretion, whose determination shall be final and binding on all parties. Neither the Corporation, the Trust, any affiliates or assigns of the Corporation or the Trust, the Exchange Agent nor any other person shall be under any duty to give any notification of any irregularities in any notice of withdrawal or incur any liability for failure to give any such notification. Any Original Capital Securities which have been tendered but which are withdrawn will be returned to the Holder thereof promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If this Letter of Transmittal is signed by the registered Holder(s) of the Original Capital Securities tendered hereby, the signature (s) must correspond exactly with the name (s) as written on the face of the Certificate(s) for such Original Capital Securities, without alteration, enlargement or any change whatsoever, or as recorded in DTC's book-entry transfer facility system, as the case may be.
If any Certificates tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Original Capital Securities are registered in different names on several Certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of Certificates. If any tendered Original Capital Securities are registered in different names in several book-entry accounts, proper procedures for book-entry transfer must be followed for each account.
If this Letter of Transmittal or any Certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing and must submit proper evidence satisfactory to the Corporation and the Trust, in their sole discretion, of each such person's authority so to act.
When this Letter of Transmittal is signed by the registered Holder(s) of the Original Capital Securities listed and transmitted hereby, or book-entry transfer is effectuated by such Holder(s), no endorsement(s) of Certificate(s) or separate bond power(s) are required except if Exchange Capital Securities are to be issued in the name of a person other than the registered Holder(s). If such exception applies, signature(s) on such Certificate(s) or bond power(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the registered Holder(s) of the Original Capital Securities listed, the Certificate(s) must be endorsed or accompanied by appropriate bond powers, signed exactly as the name(s) of the registered Holder(s) appear(s) on the Certificates, and also must be accompanied by such opinions of counsel, certifications and other information as the Corporation or the Trust may require in accordance with the restrictions on transfer applicable to the Original Capital Securities. In such event, signatures on such Certificates or bond powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange Capital Securities are to be issued in the name of a person other than the signer of this Letter of Transmittal, or if Exchange Capital Securities are to be sent to someone other than the signer of this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. Original Capital Securities not exchanged will be returned, if evidenced by Certificates, by mail or, if tendered by book- entry transfer, by crediting the account at DTC indicated above in Instruction 4.
7. IRREGULARITIES. The Corporation and the Trust will determine, in their sole discretion, all questions as to the form of documents, validity, eligibility (including time of receipt) and acceptance for exchange of any tender of Original Capital Securities, which determination shall be final and binding on all parties. The Corporation and the Trust reserve the absolute right to reject any and all tenders determined by either of them not to be in proper form or the acceptance of which, or exchange for which, may in the view of counsel to the Corporation and the Trust be unlawful. The Corporation and the Trust also reserve the absolute right, subject to applicable law, to waive any of the conditions of the Exchange Offer set forth in the Prospectus under "The Exchange Offer -- Conditions to the Exchange Offer" or any conditions or irregularity in any tender of Original Capital Securities of any particular Holder whether or not similar conditions or irregularities are waived in the case of other Holders. The Corporation's and the Trust's interpretation of the terms and conditions of the Exchange Offer (including this Letter
of Transmittal and the instructions hereto) will be final and binding. No tender of Original Capital Securities will be deemed to have been validly made until all irregularities with respect to such tender have been cured or waived. The Corporation, the Trust, any affiliates or assigns of the Corporation, the Trust, the Exchange Agent, or any other person shall not be under any duty to give notification of any irregularities in tenders or incur any liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and requests for assistance may be directed to the Exchange Agent at its address and telephone number set forth on the front cover of this Letter of Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed Delivery and this Letter of Transmittal may be obtained from the Exchange Agent or from your broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING, SUBSTITUTE FORM W-9. Under U.S. Federal income tax law, a Holder whose tendered Original Capital Securities are accepted for exchange is required to provide the Exchange Agent with such Holder's correct taxpayer identification number ("TIN") on Substitute Form W-9 below, If the Exchange Agent is not provided with the correct TIN, the Internal Revenue Service (the "IRS") may subject the Holder or other payee to a $50 penalty. In addition, payments to such Holders or other payees with respect to Original Capital Securities exchanged pursuant to the Exchange Offer may be subject to 31% backup withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the tendering Holder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 2 is checked, the Holder or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup withholding. Notwithstanding that the box in Part 2 is checked and the Certificate of Awaiting Taxpayer Identification Number is completed, the Exchange Agent will withhold 31% of all payments made prior to the time a properly certified TIN is provided to the Exchange Agent. The Exchange Agent will retain such amounts withheld during the 60-day period following the date of the Substitute Form W-9. If the Holder furnishes the Exchange Agent with its TIN within 60 days after the date of the Substitute Form W-9, the amounts retained during the 60-day period will be remitted to the Holder and no further amounts shall be retained or withheld from payments made to the Holder thereafter. If, however, the Holder has not provided the Exchange Agent with its TIN within such 60-day period, amounts withheld will be remitted to the IRS as backup withholding. In addition, 31% of all payments made thereafter will be withheld and remitted to the IRS until a correct TIN is provided.
The Holder is required to give the Exchange Agent the TIN (e.g., social security number or employer identification number) of the registered owner of the Original Capital Securities or of the last transferee appearing on the transfers attached to, or endorsed on, the Original Capital Securities.
Certain Holders (including, among others, corporations, financial institutions and certain foreign persons) may not be subject to these backup withholding and reporting requirements. Such Holders should nevertheless complete the attached Substitute Form W-9 below, and write "exempt" on the face thereof, to avoid possible erroneous backup withholding. A foreign person may qualify as an exempt recipient by submitting a properly completed IRS Form W-8, signed under penalties of perjury, attesting to that holder's exempt status.
Backup withholding is not an additional U.S. Federal income tax. Rather, the U.S. Federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained.
10. WAIVER OF CONDITIONS. The Corporation and the Trust reserve the absolute right to waive satisfaction of any or all conditions enumerated in the Prospectus.
11. NO CONDITIONAL TENDERS. No alternative, conditional or contingent tenders will be accepted. All tendering Holders, by execution of this Letter of Transmittal, shall waive any right to receive notice of the acceptance of Original Capital Securities for exchange.
Neither the Corporation, the Trust, the Exchange Agent nor any other person is obligated to give notice of any defect or irregularity with respect to any tender of Original Capital Securities nor shall any of them incur any liability for failure to give any such notice.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s) representing Original Capital Securities have been lost, destroyed or stolen, the Holder should promptly notify the Exchange Agent. The Holder will then be instructed as to the steps that must be taken in order to replace the Certificate(s). This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed or stolen Certificate(s) have been followed.
13. SECURITY TRANSFER TAXES. Holders who tender their Original Capital Securities for exchange will not be obligated to pay any transfer taxes in connection therewith. If, however, Exchange Capital Securities are to be delivered to, or are to be issued in the name of any person other than the registered Holder of the Original Capital Securities tendered, or if a transfer tax is imposed for any reason other than the exchange of Original Capital Securities in connection with the Exchange Offer, then the amount of any such transfer tax (whether imposed on the registered holder or any other persons) will be payable by the tendering Holder.
IMPORTANT: BOOK-ENTRY CONFIRMATION OR THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
TO BE COMPLETED BY ALL TENDERING SECURITYHOLDERS
(See Instructions 9)
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PAYOR'S NAME: WILMINGTON TRUST COMPANY, AS EXCHANGE AGENT
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SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN TIN: _______________________________
THE BOX AT RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW: Social Security Number or Employer
Identification Number
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Form W-9 PART 2 - TIN Applied for /_/
Department of the CERTIFICATION -- Under penalties of perjury, I certify that:
Treasury Internal Revenue Service (1) the number shown on this form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me).
(2) I am not subject to backup withholding either because (i) I am exempt from
backup withholding, (ii) I have not been notified by the Internal Revenue
PAYER'S REQUEST FOR Service ("IRS") that I am subject to backup withholding as a result of a
TAXPAYER IDENTIFICATION failure to report all interest or dividends, or (iii) the IRS has notified
NUMBER ("TIN") AND me that I am no longer subject to backup withholding, and
CERTIFICATION (3) any other information provided on this form is true and correct.
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Signature: ________________________________________ Date: ______________
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You must cross out item (iii) in Part (2) above if you have been notified by the IRS that you are subject to backup withholding because of underreporting interest or dividends on your tax return and you have not been notified by the IRS that you are no longer subject to backup withholding.
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT
TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 2 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of payment, 31% of all payments made to me on account of the Exchange Capital Securities shall be retained until I provide a taxpayer identification number to the Exchange Agent and that, if I do not provide my taxpayer identification number within 60 days, such retained amounts shall be remitted to the Internal Revenue Service as backup withholding and 31% of all reportable payments made to me thereafter will be withheld and remitted to the Internal Revenue Service until I provide a taxpayer identification number.
____________________________________ ________________________
Signature(s)Date Date
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NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
7.0% CAPITAL SECURITIES, SERIES A
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
DIME COMMUNITY CAPITAL TRUST I
UNCONDITIONALLY GUARANTEED BY
DIME COMMUNITY BANCSHARES, INC.
This Notice of Guaranteed Delivery, or one substantially equivalent to this form, must be used to accept the Exchange Offer (as defined below) if (i) certificates for the Trust's (as defined below) 7.0% Capital Securities, Series A (the "Original Capital Securities") are not immediately available, (ii) Original Capital Security Certificates and all other required documents cannot be delivered to Wilmington Trust Company, the institutional trustee ("Institutional Trustee") of Dime Community Capital Trust I, as exchange agent (the "Exchange Agent") on or prior to the Expiration Date (as defined in the Prospectus referred to below) or (iii) the procedures for delivery by book-entry transfer cannot be completed on a timely basis. This Notice of Guaranteed Delivery may be delivered by hand, overnight courier or mail, or transmitted by facsimile transmission, to the Exchange Agent. See "The Exchange Offer -- Procedures for Tendering Original Capital Securities" in the Prospectus. In addition, in order to utilize the guaranteed delivery procedure to tender Original Capital Securities in certificated form pursuant to the Exchange Offer, a completed, signed and dated Letter of Transmittal relating to the Original Capital Securities (or facsimile thereof) must also be received by the Exchange Agent on or prior to the Expiration Date. Capitalized terms not defined herein have the meanings assigned to them in the Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WILMINGTON TRUST COMPANY
AS INSTITUTIONAL TRUSTEE OF DIME COMMUNITY CAPITAL TRUST I
BY HAND, OVERNIGHT DELIVERY,
FACSIMILE TRANSMISSION NUMBER: OR CERTIFIED MAIL: CONFIRM BY TELEPHONE:
(302) 636-4145 Wilmington Trust Company, (302) 636-6470
(Eligible Instiutions Only) as Exchange Agent
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate
Capital Markets --
Dime Community Capital Trust I Exchange
Offer
FOR INFORMATION:
(302) 636-6470
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DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to Dime Community Capital Trust I, a Delaware statutory trust (the "Trust"), and to Dime Community Bancshares Inc., a Delaware Corporation ( "Dime Community"), upon the terms and subject to the conditions set forth in the Prospectus dated ________, 2004 (as the same may be amended or supplemented from time to time, the "Prospectus"), and the related Letter of Transmittal (which together constitute the "Exchange Offer"), receipt of which is hereby acknowledged, the aggregate liquidation amount of Original Capital Securities set forth below pursuant to the guaranteed delivery procedures set forth in the Prospectus under the caption "The Exchange Offer -- Procedures for Tendering Original Capital Securities."
This Notice of Guaranteed Delivery must be signed by the registered holder(s) of the Original Capital Securities exactly as its (their) name(s) appear(s) on certificates for Original Capital Securities or on a security position listing the owners of Original Capital Securities, or by person(s) authorized to become registered Holder(s) by endorsement and documents transmitted with this Notice of Guaranteed Delivery. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below.
PLEASE SIGN AND COMPLETE
Print Name(s) of Registered Holder(s): _________________________________________
Address(es): __________________________________________________________________
Area Code and Telephone Number: ________________________________________________
Print Name and Title of Authorized Signatory: __________________________________
Total Liquidation Amount of Original Capital Securities Held By Registered Holder: $ _______________________
Liquidation Amount of Original Capital Securities Tendered (if different than the total liquidation amount): $___________________*
If Original Capital Securities will be tendered by forwarding a Certificate or Certificates, provide the following information:
If Original Capital Securities will be tendered by book-entry transfer, provide The Depository Trust Company ("DTC") Account Number: ___________________________
Date: ________________________
SIGNATURE(S) OF REGISTERED HOLDER(S) OR AUTHORIZED SIGNATORY
X ____________________________________ X ____________________________________
X ____________________________________ X ____________________________________
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-l5 under the Securities Exchange Act of 1934, as amended, as an "eligible guarantor institution," including (as such terms are defined therein): (i) a bank; (ii) a broker, dealer, municipal securities broker, municipal securities dealer, government securities broker or government securities dealer; (iii) a credit union; (iv) a national securities exchange, registered securities association or clearing agency; or (v) a savings association that is a participant in a Securities Transfer Association recognized program (each of the foregoing being referred to as an "Eligible Institution"), hereby guarantees to deliver to the Exchange Agent, at the address set forth above, either the Original Capital Securities tendered hereby in proper form for transfer, or confirmation of the transfer of such Original Capital Securities to the Exchange Agent's account at DTC, pursuant to the procedures for book transfer set forth in the Prospectus, in either case together with one or more properly completed and duly executed Letter(s) of Transmittal (or facsimile thereof) and any other required documents within three business days after the date of execution of this Notice of Guaranteed Delivery.
THE UNDERSIGNED ACKNOWLEDGES THAT IT MUST DELIVER THE LETTER(S) OF TRANSMITTAL AND THE ORIGINAL CAPITAL SECURITIES TENDERED HEREBY TO THE EXCHANGE AGENT WITHIN THE TIME PERIOD SET FORTH ABOVE AND THAT FAILURE TO DO SO COULD RESULT IN A FINANCIAL LOSS TO THE UNDERSIGNED.
_____________________________________ _______________________________________
Name of Firm (Authorized Signature)
_____________________________________ _______________________________________
Address (Please Type or Print)
_____________________________________ _______________________________________
Zip Code Title
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Area Code and Telephone No.__________________ Dated: _______________________
NOTE: DO NOT SEND CERTIFICATES FOR ORIGINAL CAPITAL SECURITIES WITH THIS FORM. CERTIFICATES FOR ORIGINAL CAPITAL SECURITIES SHOULD ONLY BE SENT
WITH YOUR LETTER OF TRANSMITTAL.
EXCHANGE AGENT AGREEMENT
________________, 2004
Wilmington Trust Company,
as Institutional Trustee of Dime Community Capital Trust I
Corporate Trust Administration
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Ladies and Gentlemen:
Dime Community Capital Trust I, a statutory trust formed under the laws of the State of Delaware (the "Trust") proposes to make an offer (the "Exchange Offer") to exchange any and all of its outstanding 7.0% Capital Securities, Series A (Liquidation Amount $1,000 per Capital Security) (the "Original Capital Securities") for its 7.0% Capital Securities, Series B (Liquidation Amount $1,000 per Capital Security) (the "Exchange Capital Securities"). All of the beneficial interests represented by common securities of the Trust are owned by Dime Community Bancshares, Inc., a Delaware corporation ("Dime Community"). The terms and conditions of the Exchange Offer as currently contemplated are set forth in a prospectus, dated ___________, 2004 (as the same may be amended or supplemented from time to time, the "Prospectus"), to be distributed to all record holders of the Original Capital Securities. A copy of the Prospectus is attached hereto as Exhibit A. The Original Capital Securities and the Exchange Capital Securities are collectively referred to herein as the "Securities." Capitalized terms used but not defined herein shall have the same meaning given them in the Prospectus.
A copy of each of the form of the Letter of Transmittal, the form of the Notice of Guaranteed Delivery, the form of letter to brokers and the form of letter to clients to be used in connection with the Exchange Offer are attached hereto as Exhibit B.
The Trust hereby appoints the Institutional Trustee to act as exchange agent (the "Exchange Agent") in connection with the Exchange Offer. References hereinafter to "you" shall refer to the Institutional Trustee.
The Exchange Offer is expected to be commenced by the Trust on or about ___________, 2004. The Letter of Transmittal accompanying the Prospectus (or in the case of book-entry securities, the ATOP system) is to be used by the holders of the Original Capital Securities to accept the Exchange Offer and contains instructions with respect to (i) the delivery of certificates for Original Capital Securities tendered in connection therewith and (ii) the book-entry transfer of Securities to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on ___________, 2004 or on such later date or time to which Dime Community or the Trust may extend the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set forth in the
Wilmington Trust Company Page 2. ______________, 2004
Prospectus, Dime Community and the Trust expressly reserve the right to extend the Exchange Offer from time to time by giving oral (to be confirmed in writing) or written notice to you before 9:00 A.M., New York City time, on the Business Day following the previously scheduled Expiration Date.
Dime Community and the Trust expressly reserve the right to amend or terminate the Exchange Offer, and not to accept for exchange any Original Capital Securities not theretofore accepted for exchange, upon the occurrence of any of the conditions of the Exchange Offer specified in the Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange Offer." Dime Community or the Trust will give you prompt oral (confirmed in writing) or written notice of any amendment, termination or nonacceptance of Original Capital Securities.
In carrying out your duties as Exchange Agent, you are to act in accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically set forth in the section of the Prospectus captioned "The Exchange Offer" or as specifically set forth herein; provided, however, that in no way will your general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Original Capital Securities at The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of the Exchange Offer as soon as practicable, and any financial institution that is a participant in the Book-Entry Transfer Facility's system may make book-entry delivery of the Original Capital Securities by causing the Book-Entry Transfer Facility to transfer such Original Capital Securities into your account in accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates for Original Capital Securities (or confirmation of book-entry transfer into your account at the Book-Entry Transfer Facility) and any other documents received by you from or for holders of the Original Capital Securities to ascertain whether: (i) on their face the Letters of Transmittal and any such other documents are duly executed and properly completed in accordance with instructions set forth therein and (ii) the Original Capital Securities have otherwise been properly tendered. In each case where the Letter of Transmittal or any other document has been improperly completed or executed or any of the certificates for Original Capital Securities are not in proper form for transfer or some other irregularity in connection with the acceptance of the Exchange Offer exists, you will endeavor to inform such tendering holders of the need for fulfillment of all requirements and to take any other action as may be necessary or advisable to cause such irregularity to be corrected.
4. With the approval of any Administrator of the Trust or any person designated in writing by Dime Community (a "Designated Officer") (such approval, if given orally, to be confirmed in writing) or any other party designated by any such Administrator or Designated Officer in writing, you are authorized to waive any irregularities in connection with any tender of Original Capital Securities pursuant to the Exchange Offer.
Wilmington Trust Company Page 3. ______________, 2004
5. Tenders of Original Capital Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer -- Procedures for Tendering Original Capital Securities," and Original Capital Securities shall be considered properly tendered to you only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Original Capital Securities that any Administrator of the Trust or Designated Officer of Dime Community shall approve as having been properly tendered shall be considered to be properly tendered. Such approval, if given orally, shall be confirmed in writing.
6. You shall advise the Trust and Dime Community with respect to any Original Capital Securities received subsequent to the Expiration Date and accept their instructions with respect to disposition of such Original Capital Securities.
7. You shall accept tenders:
(a) in cases where the Original Capital Securities are registered in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when proper evidence of such person's authority so to act is submitted; and
(c) from persons other than the registered holder of Original Capital Securities provided that customary transfer requirements have been met.
You shall accept partial tenders of Original Capital Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Original Capital Securities to the transfer agent for division and return any untendered Original Capital Securities to the holder (or such other person as may be designated in the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Trust will notify you (such notice, if given orally, to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Original Capital Securities properly tendered and you, on behalf of the Trust, will exchange such Original Capital Securities for Exchange Capital Securities provided to you by or on behalf of the Trust and cause such Original Capital Securities to be canceled. Delivery of Exchange Capital Securities will be made on behalf of the Trust by you at the rate of $1,000 liquidation amount of Exchange Capital Securities for each $1,000 liquidation amount of the corresponding series of Original Capital Securities tendered promptly after notice (such notice, if given orally, to be confirmed in writing) of acceptance of said Original Capital Securities by the Trust; provided, however, that in all cases, Original Capital Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by you of certificates for such Original Capital Securities (or confirmation of book-entry transfer into your account at the Book-Entry Transfer Facility), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) with any required signature guarantees and any other required documents. The Trust shall issue Exchange Capital Securities only in denominations of
Wilmington Trust Company Page 4. ______________, 2004
$1,000 or any integral multiple thereof. Original Capital Securities may be tendered in whole or in part in denominations of $100,000 and integral multiples of $1,000 in excess thereof, provided that if any Original Capital Securities are tendered for exchange in part, the untendered liquidation amount thereof must be $100,000 or any integral multiple of $1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that, subject to the terms and upon the conditions set forth in the Prospectus and the Letter of Transmittal, Original Capital Securities tendered pursuant to the Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Trust shall not be required to exchange any Original Capital Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by the Trust not to exchange any Original Capital Securities tendered shall be given orally (and confirmed in writing) by the Trust to you.
11. If, pursuant to the Exchange Offer, the Trust does not accept for exchange all or part of the Original Capital Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange Offer" or otherwise, you shall promptly after the expiration or termination of the Exchange Offer return those certificates of Original Capital Securities not accepted for exchange (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in your possession, to the persons who deposited them.
12. All certificates for reissued Original Capital Securities, unaccepted Original Capital Securities or Exchange Capital Securities shall be forwarded (a) by first-class certified mail, return receipt requested, under a blanket surety bond at the direction and expense of Dime Community protecting you and the Trust from loss or liability arising out of the non-receipt or non-delivery of such certificates; (b) by registered mail insured separately by you at the expense of Dime Community, protecting you, Dime Community and the Trust from loss or liability arising out of the non-receipt or non-delivery of such certificates or (c) by effectuating appropriate book-entry transfer.
13. You are not authorized to pay or offer to pay any concessions, commissions or solicitation fees to any broker, dealer, bank or other persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically set forth in the section of the Prospectus captioned "The Exchange Offer," the Letter of Transmittal or herein or as may be subsequently agreed to in writing by you and the Trust;
(b) will be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of any of the certificates or the Original Capital Securities or Exchange Capital Securities represented
Wilmington Trust Company Page 5.
______________, 2004
thereby deposited with you or issued pursuant to the
Exchange Offer, and will not be required to and will
make no representation as to the validity, value or
genuineness of the Exchange Offer or the Letter of
Transmittal or any other disclosure materials
delivered in connection therewith;
(c) shall not be obligated to take any legal action
hereunder; if, however, you determine to take any
legal action hereunder, and, where the taking of such
action might, in your judgment, subject or expose you
to any expense or liability, you shall not be
required to act unless you shall have been furnished
with an indemnity satisfactory to you;
(d) may rely on, and be fully authorized and protected in
acting or failing to act upon any certificate,
instrument, opinion, notice, letter, telegram, telex,
facsimile transmission or other document or security
delivered to you and believed by you in good faith to
be genuine and to have been signed by the proper
party or parties;
(e) may reasonably act upon any tender, statement,
request, agreement or other instrument whatsoever not
only as to its due execution and validity and
effectiveness of its provisions, but also as to the
truth and accuracy of any information contained
therein, which you shall in good faith believe to be
genuine or to have been signed or represented by a
proper person or persons;
(f) may rely on, and shall be authorized and protected in
acting or failing to act upon the written, telephonic
and oral instructions with respect to any matter
relating to you acting as Exchange Agent covered by
this Agreement (or supplementing or qualifying any
such actions) of officers of Dime Community;
(g) may consult with counsel satisfactory to you,
including counsel for the Trust, with respect to any
questions relating to your duties and
responsibilities and the advice or opinion of such
counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted to be taken by you hereunder in good faith
and in accordance with the advice or opinion of such
counsel, provided that you shall promptly notify Dime
Community of any action taken or omitted by you in
reliance upon such advice or opinion;
(h) are not authorized, and shall have no obligation, to
pay any brokers, dealers or soliciting fees to any
person; and
(i) shall not advise any person tendering Original
Capital Securities pursuant to the Exchange Offer as
to the wisdom of making such tender or as to the
market value or decline or appreciation in market
value of any Original Capital Securities.
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Wilmington Trust Company Page 6. ______________, 2004 |
15. You shall take such action as may from time to time be requested by the Trust or its counsel or any Designated Officer of Dime Community (and such other action as you may reasonably deem appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery or such other forms as may be approved and provided to you from time to time by the Trust or Dime Community, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the Exchange Offer, provided that such information shall relate only to the procedures for accepting (or withdrawing from) the Exchange Offer. The Trust will furnish you with copies of such documents at your request. All other requests for information relating to the Exchange Offer shall be directed to the Trust, Attention: Kenneth J. Mahon.
16. You shall advise by facsimile transmission or telephone, and promptly thereafter confirm in writing to Kenneth J. Mahon, Administrator of the Trust, and such other person or persons as the Trust or Dime Community may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested by Dime Community or the Trust) up to and including the Expiration Date, as to the aggregate liquidation amount of Original Capital Securities which have been tendered pursuant to the Exchange Offer and the items received by you pursuant to this Agreement, separately reporting and giving cumulative totals as to items properly received and items improperly received. In addition, you will also inform, and cooperate in making available to, the Trust or Dime Community or any such other person or persons, upon oral request made from time to time on or prior to the Expiration Date, such other information as it or such person reasonably requests. Such cooperation shall include, without limitation, the granting by you to the Trust or Dime Community, and such person as the Trust or Dime Community may request, of access to those persons on your staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date the Trust or Dime Community shall have received information in sufficient detail to enable it to decide whether to extend the Exchange Offer. You shall prepare a final list of all persons whose tenders were accepted, the aggregate liquidation amount of Original Capital Securities tendered, the aggregate liquidation amount of Original Capital Securities accepted and deliver said list to the Trust promptly after the Expiration Date.
17. Letters of Transmittal and Notices of Guaranteed Delivery received by you shall be stamped by you as to the date and the time of receipt thereof and shall be preserved by you for a period of time at least equal to the period of time you preserve other records pertaining to the transfer of securities.
18. You hereby expressly waive any lien, encumbrance or right of set-off whatsoever that you may have with respect to finds deposited with you for the payment of transfer taxes by reasons of amounts, if any, borrowed by the Trust, or any of its subsidiaries or affiliates pursuant to any loan or credit agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be entitled to the compensation set forth on Schedule I attached hereto, plus reasonable out-of-pocket expenses and reasonable attorneys' fees, incurred in connection with your services hereunder, within thirty days following receipt by Dime Community of an itemized statement of such expenses and fees in reasonable detail.
Wilmington Trust Company Page 7. ______________, 2004
20. (a) The Trust covenants and agrees to indemnify and hold you (which for purposes of this paragraph shall include your directors, officers and employees) harmless in your individual capacity and in your capacity as Exchange Agent hereunder from and against any and all loss, liability, cost, damage, expense and claim, including but not limited to reasonable attorneys' fees and expenses, incurred by you as a result of, arising out of or in connection with the performance by you of your duties under this Agreement or the compliance by you with the instructions set forth herein or delivered hereunder; provided, however, that the Trust shall not be liable for indemnification or otherwise, or hold you harmless, for any loss, liability, cost, damage, expense or claim arising out of your bad faith, gross negligence or willful misconduct. In no case shall the Trust be liable under this indemnity with respect to any claim against you unless the Trust shall be notified by you, by letter or by facsimile confirmed by letter, of the written assertion of a claim against you or of any other action commenced against you, promptly after you shall have received any such written assertion or notice of commencement of action. The Trust shall be entitled to participate at its own expense in the defense of any such claim or other action, and, if the Trust so elects, the Trust may assume the defense of any suit brought to enforce any such claim; provided, that the Trust shall not be entitled to assume the defense of any such action if the named parties to such action include both the Trust and you and representation of both parties by the same legal counsel would, in the written opinion of counsel to you, be inappropriate due to actual or potential conflicting interests between them. In the event that the Trust shall assume the defense of any such suit or threatened action in respect of which indemnification may be sought hereunder, the Trust shall not be liable for the fees and expenses of any counsel thereafter retained by you. The Trust shall not be liable under this paragraph for the fees and expenses of more than one legal counsel for you.
(b) You agree that, without the prior written consent of the Trust (which consent shall not be unreasonably withheld), you will not settle, compromise or consent to the entry of any pending or threatened claim, action, or proceeding in respect of which indemnification could be sought in accordance with the indemnification provisions of this Agreement (whether or not you or the Trust or any of its trustees or controlling persons is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent includes an unconditional release of the Trust and its trustees and controlling persons from all liability arising out of such claim, action or proceeding.
21. The Trust understands that you are required in certain instances to deduct 31% of the amounts to be paid with respect to interest paid on the Exchange Capital Securities and proceeds from the sale, exchange, redemption or retirement of the Exchange Capital Securities from holders who have not supplied their correct Taxpayer Identification Number or required
Wilmington Trust Company Page 8. ______________, 2004
certification. You will remit any such funds to the Internal Revenue Service in accordance with applicable regulations.
22. You shall notify the Trust of the amount of any transfer taxes that you have actual knowledge are payable in respect of the exchange of Original Capital Securities.
23. This Agreement and your appointment as Exchange Agent hereunder shall be construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such state, and without regard to conflicts of law principles, and shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of each of the parties hereto, and no other person shall have any rights hereunder.
24. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part, except by a written instrument signed by a duly authorized representative of the party to be charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other communications to any party hereunder shall be in writing (including facsimile or similar writing) and shall be given to such party, addressed to it, at its address or facsimile number set forth below:
If to the Trust: Dime Community Capital Trust I 209 Havemeyer Street Brooklyn, New York 11211 Facsimile: (718) 782-4683 Attention: Kenneth J. Mahon
If to the Exchange Agent: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, Delaware 19890-1626 Facsimile: (302) 636-4145 Attention: Corporate Capital Markets - Dime Community Capital Trust I Exchange Offer
28. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days following the Expiration Date. Notwithstanding the foregoing, Paragraphs 19, 20 and 21 shall survive the termination of this Agreement. Upon any termination of this Agreement, you
Wilmington Trust Company Page 9. ______________, 2004
shall promptly deliver to the Trust any certificates for Securities, funds or property then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date hereof.
Wilmington Trust Company Page 10. ______________, 2004
Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by signing and returning the enclosed copy.
DIME COMMUNITY CAPITAL TRUST I
Accepted as the date first above written:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Institutional Trustee, as Exchange
Agent
Title:
Wilmington Trust Company Page 11. ______________, 2004
Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by signing and returning the enclosed copy.
DIME COMMUNITY CAPITAL TRUST I
Accepted as the date first above written:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Institutional Trustee, as Exchange
Agent
Title:
SCHEDULE I
FEES
WILMINGTON TRUST COMPANY
CORPORATE TRUST DEPARTMENT
SCHEDULE OF FEES
FOR
DIME COMMUNITY CAPITAL TRUST I
7.0% CAPITAL SECURITIES, SERIES B
1. EXCHANGE AGENT $3,500
Covers review of the Letter of Transmittal, the Exchange Agent Agreement and other related documentation; establishment of accounts and systems link with depositories; operational and administrative charges and time spent in connection with the review, receipt and processing of Letters of Transmittal, Agent's Messages and Notices of Guaranteed Delivery.
Note: The fees set forth in this schedule are subject to review of documentation and our internal credit and conflict review. The fees are also subject to change should circumstances warrant. Out-of-pocket expenses and disbursements, including reasonable counsel fees, incurred in the performance of our duties will be added to the billed fees. We may place orders to buy/sell financial instruments with outside broker-dealers that we select, as well as Wilmington Trust Company or its affiliates. These transactions (for which normal and customary spreads will be earned in addition to the charges quoted above) will be executed on a riskless principal basis solely for your account(s) and without recourse to us or our affiliates. If you choose to invest in any mutual fund, Wilmington Trust Company and/or our affiliates may earn service fees/expenses associated with these funds as disclosed in the mutual fund prospectus provided to you, in addition to the charges quoted above. We will provide periodic account statements describing transactions executed for your account(s). Trade confirms will be available upon your request at no additional charge. If a deal should fail to close for reasons beyond our control, we reserve the right to charge our acceptance plus reimbursement for legal fees incurred.
Fees for any services not specifically covered in this or other applicable schedules will be based on an appraisal of services rendered.
DIME COMMUNITY CAPITAL TRUST I
OFFER FOR ALL OUTSTANDING
7.0% CAPITAL SECURITIES, SERIES A
IN EXCHANGE FOR
7.0% CAPITAL SECURITIES, SERIES B
To: Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Dime Community Capital Trust I (the "Trust") is offering, upon and subject to the terms and conditions set forth in a prospectus dated _________, 2004 (as the same maybe amended or supplemented from time to time, the "Prospectus"), and the enclosed letter of transmittal (the "Letter of Transmittal"), to exchange (the "Exchange Offer") its 7.0% Capital Securities, Series B (the "Exchange Capital Securities") for any and all of its outstanding 7.0% Capital Securities, Series A (the "Original Capital Securities). The Exchange Offer is being made in order to satisfy certain obligations of the Trust and Dime Community Bancshares, Inc. ("Dime Community") contained in the registration rights agreement dated March 12, 2004, among the Trust, Dime Community and the initial purchaser referred to therein.
We are requesting that you contact your clients for whom you hold Original Capital Securities regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Original Capital Securities registered in your name or in the name of your nominee, or who hold Original Capital Securities registered in their own names, we are enclosing the following documents:
1. The Prospectus dated _________, 2004;
2. The Letter of Transmittal for your use and for the information (or the use, where relevant) of your clients;
3. A Notice of Guaranteed Delivery to be used if certificates for Original Capital Securities are not immediately available or time will not permit all required documents to reach the Exchange Agent prior to the Expiration Date (as defined below) or if the procedure for book entry transfer cannot be completed on a timely basis;
4. A form of letter which may be sent to your clients for whose account you hold Original Capital Securities registered in your name or the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Exchange Offer, and
5. Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.
To participate in the Exchange Offer, your clients must tender by having you execute for them a book-entry transfer of tendered Original Capital Securities into the account of Wilmington Trust Company, as Exchange Agent, at The Depository Trust Company ("DTC") using DTC's Automated Tender Offer Program. Your clients may also tender by having certificates representing the Original Capital Securities, a duly executed and properly completed Letter of Transmittal (or facsimile thereof), with any required signature guarantees, and any other required documents delivered to such Exchange Agent. The Letter of Transmittal and the Prospectus should be consulted for complete instructions and information about participation in the Exchange Offer.
If holders of Original Capital Securities wish to tender, but it is impracticable for them to forward their certificates for Original Capital Securities prior to the expiration of the Exchange Offer or to comply with the book-entry transfer procedures on a timely basis, a tender may be effected by following the guaranteed delivery procedures described in the Prospectus under "The Exchange Offer -- Procedures for Tendering Original Capital Securities -- Guaranteed Delivery."
The Trust will, upon request, reimburse brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in forwarding the Prospectus and the related documents to the beneficial owners of Original Capital Securities held by them as nominee or in a fiduciary capacity. The Trust will pay or cause to be paid all stock transfer taxes applicable to the exchange of Original Capital Securities pursuant to the Exchange Offer except as set forth in Instruction 13 of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer or requests for additional copies of the enclosed materials, should be directed to Wilmington Trust Company, the Exchange Agent for the Original Capital Securities, at its address and telephone number set forth on the front of the Letter of Transmittal.
Very truly yours,
DIME COMMUNITY CAPITAL TRUST I
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY PERSON AS AN AGENT OF THE TRUST OR THE EXCHANGE AGENT OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
DIME COMMUNITY CAPITAL TRUST I
OFFER FOR ALL OUTSTANDING
7.0% CAPITAL SECURITIES, SERIES A
IN EXCHANGE FOR
7.0% CAPITAL SECURITIES, SERIES B
To Our Clients:
Enclosed for your consideration is a prospectus dated __________, 2004 (as the same maybe amended and supplemented from time to time, the "Prospectus"), and the related letter of transmittal (the "Letter of Transmittal"), relating to the offer (the "Exchange Offer") of Dime Community Capital Trust I (the "Trust") and Dime Community Bancshares, Inc. ("Dime Community") to exchange the Trust's 7.0% Capital Securities, Series B (the "Exchange Capital Securities") for any and all of the Trust's outstanding 7.0% Capital Securities, Series A (the "Original Capital Securities"), upon the terms and subject to the conditions described in the Prospectus. The Exchange Offer is being made in order to satisfy certain obligations of the Trust and Dime Community contained in the Registration Rights Agreement dated March 12, 2004, among the Trust, Dime Community and Sandler O'Neill & Partners, L.P.
This material is being forwarded to you as the beneficial owner of the Original Capital Securities carried by us in your account but not registered in your name. A TENDER OF SUCH ORIGINAL CAPITAL SECURITIES MAY ONLY BE MADE BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS.
Accordingly, we request instructions as to whether you wish us to tender on your behalf the Original Capital Securities held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Original Capital Securities.
2. The Exchange Offer is subject to certain conditions set forth in the Prospectus in the section captioned "The Exchange Offer -- Conditions to the Exchange Offer."
3. Any transfer taxes incident to the transfer of Original Capital Securities from the holder to Dime Community will be paid by Dime Community, except as otherwise provided in the Instructions in the Letter of Transmittal.
4. The Exchange Offer expires at 5:00 p.m., New York City time, on _____________, 2004, or on such later date or time to which Dime Community or the Trust may extend the Exchange Offer.
5. If you miss our processing deadline we may be unable to tender your shares of Original Capital Securities for Exchange Capital Securities.
If you wish to have us tender your Original Capital Securities, please so instruct us by completing, executing and returning to us the instruction form attached to this letter. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR INFORMATION ONLY AND MAY NOT BE USED DIRECTLY BY YOU TO TENDER ORIGINAL CAPITAL SECURITIES.
INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed material referred to therein relating to the Exchange Offer made by Dime Community Capital Trust I with respect to its Original Capital Securities.
This will instruct you to tender the Original Capital Securities held by you for the account of the undersigned, upon and subject to the terms and conditions set forth in the Prospectus and the related Letter of Transmittal.
Please tender the Original Capital Securities held by you for my account as indicated below:
7.0% Original Capital Securities Aggregate Liquidation Amount of
/_/ Please do not tender any Original Capital
Securities held by you for my account. _____________________________________
Dated: _____________________________, 2004 Original Capital Securities Tendered*
_____________________________________
_____________________________________
SIGNATURE(S)
_____________________________________
PLEASE PRINT NAME(S) HERE
_____________________________________
_____________________________________
ADDRESSES
(____)_______________________________
AREA CODE AND TELEPHONE NUMBER
_____________________________________
TAX IDENTIFICATION OR
SOCIAL SECURITY NO(S).
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NONE OF THE ORIGINAL CAPITAL SECURITIES HELD BY US FOR YOUR ACCOUNT WILL BE TENDERED
UNLESS WE RECEIVE WRITTEN INSTRUCTIONS FROM YOU TO DO SO. UNLESS A SPECIFIC CONTRARY
INSTRUCTION IS GIVEN IN THE SPACE PROVIDED, YOUR SIGNATURE(S) HEREON SHALL CONSTITUTE AN
INSTRUCTION TO US TO TENDER ALL THE ORIGINAL CAPITAL SECURITIES HELD BY US FOR YOUR ACCOUNT.
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* MUST BE IN DENOMINATIONS OF A LIQUIDATION AMOUNT OF $1,000 AND IN ANY INTEGRAL MULTIPLE
THEREOF, AND NOT LESS THAN $100,000 AGGREGATE LIQUIDATION AMOUNT.
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