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EXHIBIT 4.9
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FORM OF
EXCHANGE GUARANTEE AGREEMENT
BETWEEN
BSB BANCORP, INC.
(AS GUARANTOR)
AND
BANKERS TRUST COMPANY
(AS GUARANTEE TRUSTEE)
DATED AS OF
, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS
Section 1.1. Definitions........................................ 1
ARTICLE II. TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application................... 5
Section 2.2. List of Holders.................................... 5
Section 2.3. Reports by the Guarantee Trustee................... 5
Section 2.4. Periodic Reports to the Guarantee Trustee.......... 5
Section 2.5. Evidence of Compliance with Conditions Precedent... 6
Section 2.6. Events of Default; Waiver.......................... 6
Section 2.7. Event of Default; Notice........................... 6
Section 2.8. Conflicting Interests.............................. 6
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee......... 7
Section 3.2. Certain Rights of Guarantee Trustee................ 8
Section 3.3. Indemnity.......................................... 10
Section 3.4. Expenses........................................... 10
ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility..................... 10
Section 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee.................................. 11
ARTICLE V. GUARANTEE
Section 5.1. Guarantee.......................................... 11
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
Section 5.6. Subrogation........................................ 13
Section 5.7. Independent Obligations............................ 13
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1. Subordination...................................... 14
Section 6.2. Pari Passu Guarantees.............................. 14
ARTICLE VII. TERMINATION
Section 7.1. Termination........................................ 14
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Successors and Assigns............................. 14
Section 8.2. Amendments......................................... 15
Section 8.3. Notices............................................ 15
Section 8.4. Benefit............................................ 16
Section 8.5. Interpretation..................................... 16
Section 8.6. Governing Law...................................... 17
Section 8.7. Counterparts....................................... 17
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CROSS REFERENCE TABLE
Certain Sections of this Exchange Guarantee relating
to Sections 310 through 318 of the Trust Indenture Act of 1939:
Trust Indenture Act Section Exchange Guarantee Section
--------------------------- --------------------------
Section 310 (a)(1)........................................ 4.1 (a)
(a)(2)........................................ 4.1 (a)
(a)(3)........................................ Not Applicable
(a)(4)........................................ Not Applicable
(b)........................................... 2.8, 4.1 (c)
Section 311 (a)........................................... Not Applicable
(b)........................................... Not Applicable
Section 312 (a)........................................... 2.2 (a)
(b)........................................... 2.2 (b)
(c)........................................... Not Applicable
Section 313 (a)........................................... 2.3
(a)(4)........................................ 2.3
(b)........................................... 2.3
(c)........................................... 2.3
(d)........................................... 2.3
Section 314 (a)........................................... 2.4
(b)........................................... 2.4
(c)(1)........................................ 2.5
(c)(2)........................................ 2.5
(c)(3)........................................ 2.5
(e)........................................... 1.1, 2.5, 3.2
Section 315 (a)........................................... 3.1 (d)
(b)........................................... 2.7
(c)........................................... 3.1 (c)
(d)........................................... 3.1 (d)
(e)........................................... Not Applicable
Section 316 (a)........................................... 1.1, 2.6, 5.4
(a)(1)(A)..................................... 5.4
(a)(1)(B)..................................... 5.4
(a)(2)........................................ Not Applicable
(b)........................................... 5.3
(c)........................................... Not Applicable
Section 317 (a)(1)........................................ Not Applicable
(a)(2)........................................ Not Applicable
(b)........................................... Not Applicable
Section 318 (a)........................................... 2.1
* This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Exchange Guarantee.
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EXCHANGE GUARANTEE AGREEMENT
THIS EXCHANGE GUARANTEE AGREEMENT, dated as of , 1998 (the "Exchange
Guarantee"), is executed and delivered by BSB BANCORP, INC., a Delaware
corporation (the "Guarantor") having its principal office at 00-00 Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000, and BANKERS TRUST COMPANY, a New York
banking corporation, as trustee (the "Guarantee Trustee"), for the benefit of
the Holders (as defined herein) from time to time of the Exchange Capital
Securities (as defined herein) of BSB Capital Trust I, a Delaware statutory
business trust (the "Issuer Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of July 24, 1998, among BSB Bancorp, Inc., as
Depositor, Bankers Trust Company, as Property Trustee (the "Property Trustee"),
Bankers Trust (Delaware), as Delaware Trustee (the "Delaware Trustee")
(collectively, the "Issuer Trustees") and the Holders from time to time of
preferred undivided beneficial ownership interests in the assets of the Issuer
Trust, the Issuer Trust (i) issued on July 24, 1998, $30,000,000 aggregate
Liquidation Amount (as defined herein) of its 8.125% Original Capital
Securities, Liquidation Amount $1,000 per original capital security
(collectively, the "Original Capital Securities") and (ii) is issuing on the
date hereof $30,000,000 aggregate Liquidation Amount of its 8.125% Exchange
Capital Securities, Liquidation Amount $1,000 per exchange capital security
(collectively, the "Exchange Capital Securities," and together with the Original
Capital Securities, the "Capital Securities") in connection with the Exchange
Offer (as defined in the Trust Agreement).
WHEREAS, as incentive for the Holders to exchange the Original
Capital Securities for the Exchange Capital Securities, the Guarantor desires
irrevocably and unconditionally to agree, to the extent set forth in this
Exchange Guarantee, to pay the Guarantee Payments (as defined below) to the
Holders of the Exchange Capital Securities, and the Guarantor agrees to make
certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the exchange by each Holder of
Exchange Capital Securities, which exchange the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Exchange
Guarantee for the benefit of the Holders.
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ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions.
As used in this Exchange Guarantee, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Trust Agreement as in effect on the date hereof.
"Additional Amount" has the meaning specified in the Trust Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Securities" shall have the meaning specified in the first recital
of this Exchange Guarantee.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Delaware Trustee" shall have the meaning specified in the first recital
of this Exchange Guarantee.
"Distributions" means preferential cumulative cash distributions
accumulating from July 24, 1998 and payable semiannually in arrears on January
31 and July 31 of each year, commencing January 31, 1999, at an annual rate of
8.125% of the Liquidation Amount.
"Event of Default" means (i) a default by the Guarantor in any of its
payment obligations under this Exchange Guarantee, or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Exchange Guarantee" means this Exchange Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Exchange Junior Subordinated Debentures" means the Exchange Junior
Subordinated Debentures to be issued by BSB Bancorp, Inc. in connection with the
Exchange Offer (as defined in the Trust Agreement).
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Exchange Capital Securities, to the
extent not paid or made by or on behalf of the Issuer Trust: (i) any accrued and
unpaid Distributions (as defined in the Trust Agreement) required to be paid on
the Exchange Capital Securities, to the extent the Issuer Trust shall have funds
on hand available therefor at such time, (ii) the Redemption Price, with respect
to the Exchange Capital Securities called for redemption by the Issuer Trust to
the extent that the Issuer Trust shall have funds on hand available therefor at
such time, and (iii) upon a voluntary or involuntary termination, winding-up or
liquidation of the Issuer Trust, unless the Exchange Junior Subordinated
Debentures are distributed to the Holders, the lesser of (a) the aggregate of
the Liquidation Amount and all accumulated and unpaid Distributions to the date
of payment to the extent the Issuer Trust shall have funds on hand available to
make such payment at such time and (b) the amount of assets of the
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Issuer Trust remaining available for distribution to Holders in liquidation of
the Issuer Trust (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means Bankers Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Exchange Guarantee and thereafter means each such Successor
Guarantee Trustee.
"Guarantor" shall have the meaning specified in the preamble of this
Exchange Guarantee.
"Holder" means any holder, as registered on the books and records of the
Issuer Trust, of any Exchange Capital Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Exchange Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of July 24,
1998, between BSB Bancorp, Inc. and Bankers Trust Company, as trustee, as may be
modified, amended or supplemented from time to time.
"Issuer Trust" shall have the meaning specified in the preamble of this
Exchange Guarantee.
"Like Amount" means (i) with respect to a redemption of Exchange Capital
Securities, Exchange Capital Securities having a Liquidation Amount equal to the
principal amount of Exchange Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, the proceeds of
which will be used to pay the Redemption Price of such Exchange Capital
Securities, (ii) with respect to a distribution of Exchange Junior Subordinated
Debentures to Holders of Exchange Capital Securities in connection with a
dissolution or liquidation of the Issuer Trust, Exchange Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount of the
Exchange Capital Securities of the Holder to whom such Exchange Junior
Subordinated Debentures are distributed, and (iii) with respect to any
distribution of an Additional Amount to Holders of Exchange Capital Securities,
Exchange Junior Subordinated Debentures having a principal amount equal to the
Liquidation Amount of the Exchange Capital Securities in respect of which such
distribution is made.
"Liquidation Amount" means the stated amount of $1,000 per Exchange
Capital Security.
"Majority in Liquidation Amount of the Exchange Capital Securities" means,
except as provided by the Trust Indenture Act, Exchange Capital Securities
representing more than 50% of the aggregate Liquidation Amount of all then
outstanding Exchange Capital Securities issued by the Issuer Trust.
"Officers' Certificate" means, with respect to any person, a certificate
signed by the Chairman of the Board, Chief Executive Officer, President, or Vice
President, and by the Chief Financial Officer, Treasurer, an Associate
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Exchange Guarantee shall include:
(i) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the definitions
relating thereto;
(ii) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officers'
Certificate;
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(iii) 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
(iv) 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.
"Property Trustee" shall have the meaning specified in the first recital
of this Exchange Guarantee.
"Redemption Date" means, with respect to any Exchange Capital Security to
be redeemed, the date fixed for such redemption by or pursuant to the Trust
Agreement; provided that each Exchange Junior Subordinated Debenture Redemption
Date (as such term is defined in the Indenture) and the stated maturity of the
Exchange Junior Subordinated Debentures shall be a Redemption Date for a Like
Amount of Exchange Capital Securities.
"Redemption Price" shall have the meaning specified in the Trust
Agreement.
"Responsible Officer" means, when used with respect to the Guarantee
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, principal, vice president, assistant vice president,
assistant treasurer, assistant secretary or any other officer of the Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and having direct responsibility for the
administration of this Exchange Guarantee, and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Senior Indebtedness" shall have the meaning specified in the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" shall have the meaning specified in the Recitals to this
Exchange Guarantee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, or any successor statute, in each case
as amended from time to time.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required to be a part of and govern this
Exchange Guarantee, the provision of the Trust Indenture Act shall control. If
any provision of this Exchange Guarantee modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Exchange Guarantee as so modified or
excluded, as the case may be.
SECTION 2.2. List of Holders.
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(a) The Guarantor will furnish or cause to be furnished to the
Guarantee Trustee:
(i) semiannually, not more than 15 days after January 15 and July
15 in each year, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders as of such dates; and
(ii) at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of any such request,
a list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished.
(b) The Guarantee Trustee shall comply with the requirements of Section
312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Within 60 days of January 31 of each year, commencing January 31, 1999,
the Guarantee Trustee shall provide to the Holders such reports, if any, as are
required by Section 313 of the Trust Indenture Act in the form and in the manner
provided by Section 313 of the Trust Indenture Act. If this Guarantee Agreement,
shall have been qualified under the Trust Indenture Act, the Guarantee Trustee
also shall comply with the requirements of Section 313(d) of the Trust Indenture
Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, and the Holders such
documents, reports and information, if any, as required by Section 314 of the
Trust Indenture Act and the compliance certificate required by Section 314 of
the Trust Indenture Act, in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act, provided that such documents, reports
and information shall be required to be provided to the Securities and Exchange
Commission only if this Exchange Guarantee shall have been qualified under the
Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this Exchange
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.
The Holders of a Majority in Liquidation Amount of the Exchange Capital
Securities may, by vote, on behalf 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 Exchange Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default known to the Guarantee Trustee, unless
such Events of Default have been cured before the giving of such notice;
provided that, except in the case of a default in the payment of a Guarantee
Payment,
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the Guarantee Trustee shall be protected in withholding such notice if and so
long as the Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default (i) unless a Responsible Officer charged with the
administration of this Exchange Guarantee shall have received written notice of
such Event of Default, or (ii) a Responsible Officer of the Guarantee Trustee
charged with administration of the Trust Agreement shall have obtained actual
knowledge thereof.
SECTION 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in this
Exchange 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 Exchange Guarantee shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Exchange Guarantee to any Person except to a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee hereunder. The right, title and interest of the Guarantee
Trustee, as such, hereunder shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting 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 has occurred and is continuing, the Guarantee
Trustee shall enforce this Exchange Guarantee for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall be
obligated to perform only such duties as are specifically set forth in this
Exchange Guarantee (including pursuant to Section 2.1), and no implied covenants
shall be read into this Exchange Guarantee against the Guarantee Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6), the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Exchange 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 Exchange 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 bad faith or willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Exchange
Guarantee (including pursuant to Section 2.1), and the Guarantee
Trustee shall not be liable except for the performance
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of such duties and obligations as are specifically set forth in this
Exchange Guarantee (including pursuant to Section 2.1); 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
Exchange Guarantee; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture Act
are specifically required to be furnished to the Guarantee Trustee,
the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Exchange 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 the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Exchange 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 Exchange
Guarantee; and
(iv) no provision of this Exchange 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 or liability is not assured to it under the terms of this
Exchange Guarantee or adequate indemnity against such risk or liability
is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may 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, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor contemplated by this
Exchange Guarantee shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein;
(iii) whenever, in the administration of this Exchange Guarantee,
the Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with legal counsel, and the
written advice or opinion of such legal counsel with respect to legal
matters shall be full and complete
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authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in accordance with
such advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its employees. The
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Exchange Guarantee from any court of
competent jurisdiction;
(v) the Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Exchange Guarantee at the
request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Guarantee
Trustee; provided, however, that nothing herein shall relieve the
Guarantee Trustee of its obligations upon the occurrence of an Event of
Default that has not been cured or waived to exercise the rights and
powers vested in the Guarantee Trustee by this Guarantee, and to use the
same degree of care and skill in exercising such rights and powers as a
reasonably prudent person would use under the circumstances in the conduct
of his own affairs;
(vi) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(vii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any negligence or willful misconduct on the part of any
such agent or attorney appointed with due care by it hereunder. Nothing
herein shall be construed as limiting or restricting the right of the
Guarantor to bring any action directly against any agent or attorney
appointed by the Guarantee Trustee for any negligence or willful
misconduct on the part of such agent or attorney; and
(viii) whenever in the administration of this Exchange 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, (B) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received and
(C) shall be fully protected in acting in accordance with such
instructions.
(b) No provision of this Exchange 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 to act in accordance with such power and
authority.
SECTION 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee (which, for
the purposes of this Section 3.3, shall include its directors, officers,
employees and agents) for, and to hold the Guarantee Trustee harmless against,
any loss, liability or expense incurred without negligence,
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willful misconduct or bad faith on the part of the Guarantee Trustee, arising
out of or in connection with the acceptance or administration of this Exchange
Guarantee, including the reasonable costs and expenses of defending against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Guarantee Trustee will not claim or exact any
lien or charge on any Guarantee Payments as a result of any amount due to it
under this Exchange Guarantee.
SECTION 3.4. Expenses.
The Guarantor shall from time to time reimburse the Guarantee Trustee for
its reasonable expenses and costs (including reasonable attorneys' or agents'
fees) incurred in connection with the performance of its duties hereunder.
ARTICLE IV.
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of
Section 310(a) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then, for the
purposes of this Section and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(b).
(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) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article IV shall
become effective until the acceptance of appointment by the Successor Guarantee
Trustee by written instrument executed by the Successor Guarantee Trustee and
delivered to the Holders and the Guarantee Trustee.
(b) Subject to Section 4.2(a), a Guarantee Trustee may resign at any
time by giving written notice thereof to the Holders. The Guarantee Trustee
shall appoint a successor by requesting from at least three Persons meeting the
eligibility requirements such Person's expenses and charges to serve as the
Guarantee Trustee, and selecting the Person who agrees to the lowest expenses
and charges. If the instrument of acceptance by the Successor Guarantee Trustee
shall not have been delivered to the Guarantee Trustee within 60 days after the
giving of such notice of resignation, the Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.
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(c) The Guarantee Trustee may be removed for cause at any time by Act
(within the meaning of Section 6.8 of the Trust Agreement) of the Holders of at
least a Majority in Liquidation Amount of the Exchange Capital Securities,
delivered to the Guarantee Trustee.
(d) If a resigning Guarantee Trustee shall fail to appoint a successor,
or if a Guarantee Trustee shall be removed or become incapable of acting as
Guarantee Trustee, or if any vacancy shall occur in the office of any Guarantee
Trustee for any cause, the Holders of the Exchange Capital Securities, by Act of
the Holders of record of not less than 25% in aggregate Liquidation Amount of
the Exchange Capital Securities then outstanding delivered to such Guarantee
Trustee, shall promptly appoint a successor Guarantee Trustee. If no Successor
Guarantee Trustee shall have been so appointed by the Holders of the Exchange
Capital Securities and such appointment accepted by the Successor Guarantee
Trustee, any Holder, on behalf of himself and all others similarly situated, may
petition any court of competent jurisdiction for the appointment of a Successor
Guarantee Trustee.
ARTICLE V.
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full on a
subordinated basis as set forth in Section 6.1 hereof to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by or on
behalf of the Issuer Trust), as and when due, regardless of any defense, right
of set-off or counterclaim which the Issuer Trust may have or assert, except the
defense of payment. The Guarantor's obligation to make a Guarantee Payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer Trust to pay such amounts to the Holders. The
Guarantor shall give prompt written notice to the Guarantee Trustee in the event
it makes any direct payment hereunder.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Exchange 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 Guarantee Trustee,
the Issuer Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Exchange 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 Trust of any express or implied
agreement, covenant, term or condition relating to the Exchange Capital
Securities to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of all or
any portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Exchange Junior Subordinated Debentures as so provided in the Indenture),
Redemption Price, Liquidation Distribution or any other sums payable under the
terms of the Exchange Capital Securities or the extension of time for the
performance of any other obligation under, arising out of, or in connection
with, the Exchange Capital Securities;
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(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 Exchange Capital
Securities, or any action on the part of the Issuer Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Exchange Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor (other than payment of
the underlying obligation), it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Exchange Guarantee
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Exchange
Guarantee on behalf of the Holders; (iii) the Holders of a Majority in
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 this Exchange Guarantee or exercising any
trust or power conferred upon the Guarantee Trustee under this Exchange
Guarantee; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Exchange Guarantee, without first
instituting a legal proceeding against the Guarantee Trustee, the Issuer Trust
or any other Person.
SECTION 5.5. Guarantee of Payment.
This Exchange Guarantee creates a guarantee of payment and not of
collection. This Exchange Guarantee will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Exchange Junior Subordinated
Debentures to Holders as provided in the Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Exchange Guarantee; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Exchange Guarantee, if at the time of any such
payment, any amounts are due and unpaid under this Exchange 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.
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SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer Trust with respect to the Exchange 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 Exchange
Guarantee notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI.
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
This Exchange Guarantee will constitute an unsecured obligation of
the Guarantor and will rank subordinate and junior in right of payment to all
Senior Indebtedness of the Guarantor to the extent and in the manner set forth
in the Indenture with respect to the Exchange Junior Subordinated Debentures,
and the provisions of Article XIII of the Indenture will apply, mutatis
mutandis, to the obligations of the Guarantor hereunder. The obligations of the
Guarantor hereunder do not constitute Senior Indebtedness of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Exchange Guarantee shall rank
pari passu with any similar guarantee agreements issued by the Guarantor on
behalf of the holders of preferred or capital securities issued by the Issuer
Trust and with any other security, guarantee or other obligation that is
expressly stated to rank pari passu with the obligations of the Guarantor under
this Exchange Guarantee.
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination.
This Exchange Guarantee shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Exchange Capital
Securities, (ii) the distribution of Exchange Junior Subordinated Debentures to
the Holders in exchange for all of the Exchange Capital Securities or (iii) full
payment of the amounts payable in accordance with Article IX of the Trust
Agreement upon liquidation of the Issuer Trust. Notwithstanding the foregoing,
this Exchange Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder is required to repay any sums paid
with respect to the Exchange Capital Securities or this Exchange Guarantee.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Exchange Guarantee shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Exchange Capital
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Guarantor's
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obligations hereunder, the Guarantor shall not assign its obligations hereunder,
and any purported assignment that is not in accordance with these provisions
shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not materially adversely affect
the rights of the Holders (in which case no consent of the Holders will be
required), this Exchange Guarantee may only be amended with the prior approval
of the Holders of not less than a Majority in Liquidation Amount of the Exchange
Capital Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied (confirmed by delivery of the original) or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address or telecopy number or to the attention of such
other Person as the Guarantor may give notice to the Holders:
BSB Bancorp, Inc.
00-00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Office of the Secretary
(b) if given to the Issuer Trust, in care of the Guarantee Trustee, at
the Issuer Trust's (and the Guarantee Trustee's) address set forth below or such
other address or telecopy number or to the attention of such other Person as the
Guarantee Trustee on behalf of the Issuer Trust may give notice to the Holders:
BSB Capital Trust I
c/o BSB Bancorp, Inc.
00-00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Office of the Secretary
with a copy to:
Bankers Trust Company
Four Albany Street - 4th Floor
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust and Agency Group;
Corporate Market Services
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
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Attention: Corporate Trust and Agency Group;
Corporate Market Services
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Exchange Guarantee is solely for the benefit of the Holders and
is not separately transferable from the Exchange Capital Securities.
SECTION 8.5. Interpretation.
In this Exchange Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Exchange Guarantee but not defined in
the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Exchange Guarantee has the same
meaning throughout;
(c) all references to "the Exchange Guarantee" or "this Exchange
Guarantee" are to this Exchange Guarantee as modified, supplemented or amended
from time to time;
(d) all references in this Exchange Guarantee to Articles and Sections
are to Articles and Sections of this Exchange Guarantee unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Exchange Guarantee unless otherwise defined in this Exchange
Guarantee or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.6. Governing Law.
THIS EXCHANGE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 8.7. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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THIS EXCHANGE GUARANTEE is executed as of the day and year first above
written.
BSB BANCORP, INC.,
as Guarantor
By:
------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee, and not in its
individual capacity
By:
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Name:
Title:
