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
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
ARTICLE V
SERIES B GUARANTEE
SECTION 5.1 Guarantee.....................................................12
i
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
ii
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)
----------------------
* 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.
SERIES B GUARANTEE AGREEMENT
----------------------------
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 X'Xxxxx & 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 Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000-0000.
2
"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.
3
"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.
4
"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.
5
(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
6
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.
7
(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.
8
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,
9
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.
10
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
11
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:
12
(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
13
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
14
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
15
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
16
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.
17
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
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Capital Markets
Telecopy: (000) 000-0000
Telephone: (000) 000-0000;
(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.
000 Xxxxxxxxx Xxxxxx
00
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000; 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.
19
THIS SERIES B GUARANTEE is executed as of the day and year first above written.
Dime Community Bancshares, Inc.,
as Guarantor
By:/s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By: /s/ Xxxx St. Amand
--------------------------------
Xxxx St. Xxxxx
Assistant Vice President
20
