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GUARANTEE AGREEMENT
GREENPOINT CAPITAL TRUST I
Dated as of ________, 1997
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CROSS REFERENCE TABLE*
Section of Trust
Indenture Act of Section of
1939, as amended Agreement
310(a) .......................................... 4.1(a)
310(b) .......................................... 4.1(c)
310(c) .......................................... Inapplicable
311(a) .......................................... 2.2(b)
311(b) .......................................... 2.2(b)
31I(c) .......................................... Inapplicable
312(a) .......................................... 2.2(a)
312(b) .......................................... 2.2(b)
312(c) .......................................... 2.9
313(a) .......................................... 2.3
313(b) .......................................... 2.3
313(c) .......................................... 2.3
313(d) .......................................... 2.3
314(a) .......................................... 2.4
314(b) .......................................... Inapplicable
314(c) .......................................... 2.5
314(d) .......................................... Inapplicable
314(e) .......................................... 2.5
314(f) .......................................... Inapplicable
315(a) .......................................... 3.1(d); 3.2(a)
315(b) .......................................... 2.7(a)
315(c) .......................................... 3.1(c)
315(d) .......................................... 3.1(d)
316(a) .......................................... 2.6; 5.4(a)
317(a) .......................................... 2.10; 5.4
318(a) .......................................... 2.1(c)
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* This Cross-Reference Table does not constitute part of the
Agreement and shall not have any bearing upon the interpretation
of any of its terms or provisions.
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS2
SECTION 1.1 Interpretation and Definitions ...................2
ARTICLE 2
TRUST INDENTURE ACT......................5
SECTION 2.1 Trust Indenture Act; Application5
SECTION 2.2 Lists of Holders of Capital Securities...........5
SECTION 2.3 Reports by Guarantee Trustee ....................6
SECTION 2.4 Periodic Reports to Guarantee Trustee ...........6
SECTION 2.5 Evidence of Compliance with Conditions
Precedent ....................................6
SECTION 2.6 Guarantee Event of Default; Waive ...............6
SECTION 2.7 Guarantee Event of Default; Notice ..............6
SECTION 2.8 Conflicting Interests ...........................7
SECTION 2.9 Disclosure of Information .......................7
SECTION 2.10 Guarantee Trustee May File Proofs of Claim.......7
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE.......7
SECTION 3.1 Powers and Duties of Guarantee Trustee ..........7
SECTION 3.2 Certain Rights of Guarantee Trustee .............9
SECTION 3.3 Not Responsible for Recitals or Issuance
of Guarantee ................................11
ARTICLE 4
GUARANTEE TRUSTEE......................11
SECTION 4.1 Guarantee Trustee; Eligibility ..................11
SECTION 4.2 Appointment, Removal and Resignation of
Guarantee Trustee ...........................12
ARTICLE 5
GUARANTEE...........................13
SECTION 5.1 Guarantee ......................................13
SECTION 5.2 Waiver of Notice and Demand ....................13
SECTION 5.3 Obligations Not Affected .......................13
SECTION 5.4 Rights of Holders ..............................14
SECTION 5.5 Guarantee of Payment ...........................15
SECTION 5.6 Subrogation ....................................15
SECTION 5.7 Independent Obligations ........................15
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION..........15
SECTION 6.1 Limitation of Transactions .....................16
SECTION 6.2 Ranking ........................................16
ARTICLE 7
TERMINATION.........................16
SECTION 7.1 Termination ....................................17
ARTICLE 8
INDEMNIFICATION.......................17
SECTION 8.1 Exculpation ....................................17
SECTION 8.2 Indemnification ................................17
ARTICLE 9
MISCELLANEOUS........................18
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
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as
of _________, 1997, is executed and delivered by GreenPoint
Financial Corp., a Delaware corporation (the "Guarantor"), and
The Bank of New York, a New York banking corporation, as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as
defined herein) of the Capital Securities (as defined herein) of
GreenPoint Capital Trust I, a Delaware statutory business trust
(the "Trust").
W I T N E S S E T H:
WHEREAS, pursuant to the Declaration (as defined
herein), the Trust issued on June 3, 1997 $200,000,000 aggregate
liquidation amount of capital securities, having a liquidation
amount of $1,000 per capital security, designated the 9.10%
Subordinated Capital Income Securities (the "Old Capital
Securities") and 6194.363 common securities, having a liquidation
amount of $1,000 per common security, designated the 9.10% Common
Securities (the "Common Securities"; together with the Old
Capital Securities, the "Securities");
WHEREAS, as incentive for the holders of the
Securities to purchase the Securities, the Guarantor irrevocably
and unconditionally agreed, to the extent set forth in the
Guarantee Agreement dated as of June 3, 1997 (the "Old
Guarantee"), to pay to the holders of the Securities the
Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
WHEREAS, pursuant to the Registration Rights Agreement
(as defined in the Declaration), the Trust has offered to
exchange up to $200,000,000 aggregate liquidation amount of 9.10%
Subordinated Capital Income Securities (the "New Capital
Securities" and, together with the Old Capital Securities, the
"Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act") for a
like liquidation amount of its outstanding Old Capital Securities
(the "Exchange Offer");
WHEREAS, pursuant to the Exchange Offer, the Guarantor
and the Guarantee Trustee wish to exchange the Old Guarantee with
respect to the Old Capital Securities for this Guarantee, which
is substantially the same as the Old Guarantee, except that it
has been registered under the Securities Act and qualified under
the Trust Indenture Act and which is for the benefit of the
Holders of New Capital Securities and Old Capital Securities not
exchanged for New Capital Securities; and
WHEREAS, as incentive for the Holders to retain the
Capital Securities (which the Guarantor agrees will benefit it),
the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Guarantee, to pay to the Holders
of the Capital Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and
conditions set forth herein.
2
NOW, THEREFORE, in consideration of the foregoing
premises, the Guarantor executes and delivers this Guarantee for
the benefit of the Holders of Capital Securities.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. In this
Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this 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 Guarantee has the
same meaning throughout;
(c) all references to "the Guarantee" or "this
Guarantee" are to this Guarantee as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee to Articles and
Sections are to Articles and Sections of this Guarantee,
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee, unless otherwise
defined in this Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural
and vice versa and a reference to the masculine includes,
as applicable, the feminine.
"Affiliate" has the same meaning as given to that term
in Rule 405 of the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Business Day" has the meaning given to such term in
the Indenture.
"Corporate Trust Office" means the office of the
Guarantee Trustee at which the corporate trust business of the
Guarantee Trustee shall at any particular time, be principally
administered, which office at the date of execution of this
Guarantee is located at The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Trustee Administration.
"Covered Person" means any Holder or beneficial owner
of Capital Securities.
3
"Debentures" means the series of subordinated deferrable
interest debentures to be issued by the Guarantor, designated the
9.10% Junior Subordinated Debentures due 2027 held by the
Property Trustee (as defined in the Declaration) of the Trust.
"Declaration" means the Amended and Restated
Declaration of Trust, dated as of June 3, 1997, as amended,
modified or supplemented from time to time, among the trustees of
the Trust named therein, the Guarantor, as sponsor, and the
holders from time to time of undivided beneficial ownership
interests in the assets of the Trust.
"Guarantee Event of Default" means a default by the
Guarantor on any of its payment or other obligations under this
Guarantee.
"Guarantee Trustee" means The Bank of New York, until
a successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee and
thereafter means each such Successor Guarantee Trustee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital
Securities, to the extent not paid or made by the Trust: (i) any
accumulated and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Capital
Securities to the extent the Trust shall have sufficient funds
available therefor at the time, (ii) the Redemption Price (as
defined in the Declaration) with respect to any Capital
Securities called for redemption by the Trust, to the extent the
Trust shall have sufficient funds available therefor at the time,
and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Trust (other than in connection with the
distribution of Debentures to the Holders in exchange for Capital
Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Capital Securities to the date of payment,
and (b) the amount of assets of the Trust remaining available for
distribution to Holders in liquidation of the Trust (in either
case, the "Liquidation Distribution"). If a Trust Enforcement
Event (as defined in the Declaration) has occurred and is
continuing, the rights of holders of the Common Securities to
receive Guarantee Payments under this Guarantee are subordinated
to the rights of Holders of the Capital Securities to receive
payments hereunder.
"Holder" shall mean any holder of Capital Securities,
as registered on the books and records of the Trust; provided,
however, that, in determining whether the Holders of the
requisite percentage of Capital Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor or any
other obligor on the Capital Securities; and provided further,
that in determining whether the Holders of the requisite
liquidation amount of Capital Securities have voted on any matter
provided for in this Guarantee, then for the purpose of such
determination only (and not for any other purpose hereunder), if
the Capital Securities remain in the form of one or more Global
Certificates (as defined in the Declaration), the term "Holders"
shall mean the holder of the Global Certificate acting at the
direction of the Preferred Security Beneficial Owners (as defined
in the Declaration).
4
"Indemnified Person " means the Guarantee Trustee, any
Affiliate of the Guarantee Trustee, and any officers, directors,
shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of June 3,
1997, among the Guarantor (the "Company") and The Bank of New
York, as trustee, and any indenture supplemental thereto pursuant
to which the Debentures are to be issued to the Property Trustee
(as defined in the Declaration) of the Trust.
"Majority in Liquidation Amount of the Capital
Securities" means, except as provided in the terms of the Capital
Securities or by the Trust Indenture Act, Holder(s) of
outstanding Capital Securities, voting separately as a class, who
are the record holders of more than 50% of the aggregate
liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Capital
Securities. In determining whether the Holders of the requisite
amount of Capital Securities have voted, Capital Securities which
are owned by the Guarantor or any Affiliate of the Guarantor
shall be disregarded for the purpose of any such determination.
"Officers' Certificate" means, with respect to any
Person, a certificate signed on behalf of such Person by two
Authorized Officers (as defined in the Declaration) of such
Person. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer on
behalf of such Person in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer on behalf of
such Person to express an informed opinion as to whether
or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of each
such officer acting on behalf of such Person, 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.
5
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the
Guarantee Trustee, including any vice president, any assistant
vice president, any assistant secretary, any assistant treasurer
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" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. (a) This
Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee and shall, to the
extent applicable, be governed by such provisions.
(b) This Guarantee has been qualified under the Trust
Indenture Act; and
(b) If and to the extent that any provision of this
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.
SECTION 2.2 Lists of Holders of Capital Securities.
(a) The Guarantor shall provide the Guarantee Trustee with a
list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Capital
Securities ("List of Holders"), (i) semi-annually, not later than
June 15 and December 15 of each year and current as of such date,
and (ii) at such other times as the Guarantee Trustee may request
in writing, within 30 days of receipt by the Guarantor of a
written request from the Guarantee Trustee for a List of Holders
as of a date no more than 15 days before such List of Holders is
given to the Guarantee Trustee; excluding from any such list
names and addresses received by the Guarantee Trustee in its
capacity as Security Registrar (as defined in the Indenture). The
Guarantee Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of
Holders given to it, provided that it may destroy any List of
Holders previously given to it on receipt of a new List of
Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
6
SECTION 2.3 Reports by Guarantee Trustee. Within 60
days after May 15 of each year (commencing with the year of the
first anniversary of the issuance of the Capital Securities), the
Guarantee Trustee shall provide to the Holders of the Securities
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 to Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) 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. 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 any conditions precedent, if
any, provided for in this 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 Guarantee Event of Default; Waiver. The
Holders of a Majority in Liquidation Amount of the Capital
Securities may, by vote or written consent, on behalf of the
Holders of all of the Capital Securities, waive any past
Guarantee Event of Default and its consequences. Upon such
waiver, any such Guarantee Event of Default shall cease to exist,
and any Guarantee Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Guarantee,
but no such waiver shall extend to any subsequent or other
default or Guarantee Event of Default or impair any right
consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice. (a)
The Guarantee Trustee shall, within 90 days after the occurrence
of a Guarantee Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Capital Securities,
notices of all Guarantee Events of Default actually known to a
Responsible Officer of the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice;
provided, that 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 of
the Capital Securities.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Guarantee Event of Default unless the Guarantee
Trustee shall have received written notice thereof or a
7
Responsible Officer of the Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual
knowledge thereof.
SECTION 2.8 Conflicting Interests. The Declaration
shall be deemed to be specifically described in this Guarantee
for the purposes of clause (i) of the first provision contained
in Section 310(b) of the Trust Indenture Act.
SECTION 2.9 Disclosure of Information. The disclosure
of information as to the names and addresses of the Holders of
the Capital Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of
any existing law, or any law hereafter enacted which does not
specifically refer to Section 312 of the Trust Indenture Act, nor
shall the Guarantee Trustee be held accountable by reason of
mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
SECTION 2.10 Guarantee Trustee May File Proofs of
Claim. Upon the occurrence of a Guarantee Event of Default, the
Guarantee Trustee is hereby authorized to (a) recover judgment,
in its own name and as trustee of an express trust, against the
Guarantor for the whole amount of any Guarantee Payments
remaining unpaid and (b) file such proofs of claim and other
papers or documents as may be necessary or advisable in order to
have its claims and those of the Holders of the Capital
Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE 3
POWERS, DUTIES AND RIGHTS
OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Guarantee Trustee.
(a) This Guarantee shall be held by the Guarantee
Trustee on behalf of the Trust for the benefit of the Holders of
the Capital Securities, and the Guarantee Trustee shall not
transfer this Guarantee to any Person except a Holder of 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. The right, title and interest of the
Guarantee Trustee in and to this Guarantee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and
succession 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 a Guarantee Event of Default actually known to
a Responsible Officer of the Guarantee Trustee has occurred and
is continuing, the Guarantee Trustee shall enforce this Guarantee
for the benefit of the Holders of the Capital Securities.
8
(c) The Guarantee Trustee, before the occurrence of
any Guarantee Event of Default and after the curing of all
Guarantee Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set
forth in this Guarantee, and no implied covenants shall be read
into this Guarantee against the Guarantee Trustee. In case a
Guarantee Event of Default has occurred (that has not been cured
or waived pursuant to Section 2.6) 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 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 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, except that:
(i) prior to the occurrence of any Guarantee
Event of Default and after the curing or waiving of
all such Guarantee 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 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 Guarantee, and
no implied covenants or obligations shall be read
into this 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 Guarantee;
but in the case of any such certificates or
opinions that by any provision hereof 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 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 Capital Securities
relating to the time, method and place of conducting
9
any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this
Guarantee; and
(iv) no provision of this 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 reasonably
assured to it under the terms of this Guarantee or
indemnity, reasonably satisfactory to the Guarantee
Trustee, 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 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 Guarantee shall be sufficiently
evidenced by an Officers' Certificate;
(iii) Whenever, in the administration of this
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 Officers' Certificate
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 any rerecording, refiling or
registration 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 Guarantee from any court of
competent jurisdiction;
10
(vi) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this 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, that
nothing contained in this Section 3.2(a)(vi) shall be
taken to relieve the Guarantee Trustee, upon the
occurrence of a Guarantee Event of Default, of its
obligation to exercise the rights and powers vested
in it by this Guarantee;
(vii) 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;
(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 agent or attorney
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
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 Guarantee, both of which shall be
conclusively evidenced by the Guarantee Trustee's or
its agent's taking such action; and
(x) Whenever in the administration of this
Guarantee the Guarantee Trustee shall deem it
desirable to receive written instructions with
respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (i)
may request written instructions from the Holders of
a Majority in Liquidation Amount of the Capital
Securities, (ii) may refrain from enforcing such remedy
or right or taking such other action until such written
instructions are received, and (iii) shall be protected
in conclusively relying on or acting in accordance with
such instructions.
(b) No provision of this 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
11
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 Guarantee. The recitals contained in this 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 representations as to the validity
or sufficiency of this Guarantee.
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.
(a) There shall be at all times a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority.
If such corporation 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), 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(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.
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SECTION 4.2 Appointment, Removal and Resignation
of Guarantee Trustee.
(a) Subject to Section 4.1(b), the Guarantee Trustee
may be appointed or removed with or without cause at any time
by the Guarantor.
(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 appointed to office shall
hold such office until a Successor Guarantee Trustee shall have
been appointed or until its removal or resignation. The
Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by 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 30 days after delivery to the Guarantee Trustee or
Guarantor, as the case may be, of an instrument of removal or
resignation, the removed or resigning Guarantee Trustee may
petition, at the expense of the Guarantor, 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 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 for fees and reimbursement of expenses which have
accrued to the date of such termination, removal or
resignation.
(g) The Guarantor shall promptly notify the Holders
of the resignation, removal or appointment of the Guarantor.
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ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees
to pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Trust), as and
when due, regardless of any defense, right of set-off or
counterclaim that the Trust 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 Trust to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of
this 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 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. Notwithstanding anything to the contrary herein, the
Guarantor retains all of its rights under the Indenture to (i)
extend the interest payment period on the Debentures and the
Guarantor shall not be obligated hereunder to make any Guarantee
Payments during any Extended Interest Payment Period (as defined
in the Indenture) with respect to the Distributions (as defined
in the Declaration) on the Securities, and (ii) change the
maturity date of the Debentures to the extent permitted by the
Indenture.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of
the Guarantor under this Guarantee shall be absolute and
unconditional and shall remain in full force and effect until the
entire liquidation amount of all outstanding Capital Securities
shall have been paid and such obligation shall in no way be
affected or impaired by reason of the happening from time to time
of any event, including without limitation, the following,
whether or not with notice to, or the consent of, the Guarantor:
(a) The release or waiver, by operation of law or
otherwise, of the performance or observance by the Trust of
any express or implied agreement, covenant, term or
condition relating to the Capital Securities to be
performed or observed by the Trust;
(b) The extension of time for the payment by the
Trust of all or any portion of the Distributions, Redemp-
tion Price (as defined in the Indenture), Liquidation
Distribution or any other sums payable under the terms of
the Capital Securities or the extension of time for the
performance of any other obligation under, arising out of,
or in connection with the Capital Securities (other than an
extension of time for payment of Distributions, Redemption
Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period
on the Debentures or any change to the maturity date of the
Debentures permitted by the Indenture);
(c) Any failure, omission, delay or lack of diligence
on the part of the Property Trustee or the Holders to
enforce, assert or exercise any right, privilege, power or
remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Capital Securities, or any
action on the part of the Trust granting indulgence or
extension of any kind;
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(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 Trust or any of the assets of the Trust;
(e) Any invalidity of, or defect or deficiency in,
the 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
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 Guarantee Trustee
or the Holders to give notice to, or obtain consent of the
Guarantor or any other Person with respect to the happening of
any of the foregoing.
No setoff, counterclaim, reduction or diminution of any
obligation, or any defense of any kind or nature that the
Guarantor has or may have against any Holder shall be available
hereunder to the Guarantor against such Holder to reduce the
payments to it under this Guarantee.
SECTION 5.4 Rights of Holders.
(a) The Holders of a Majority in Liquidation Amount of
the 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 Guarantee or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this
Guarantee, then any Holder of Capital Securities may, subject to
the subordination provisions of Section 6.2, institute a legal
proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Guarantee without first
instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity. Notwithstanding the
foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder of Capital Securities may, subject to the
subordination provisions of Section 6.2, directly institute a
proceeding against the Guarantor for enforcement of the Guarantee
for such payment to the Holder of the Capital Securities of the
principal of or interest on the Debentures on or after the
respective due dates specified in the Debentures, and the amount
of the payment will be based on the Holder's pro rata share of
the amount due and owing on all of the Capital Securities. The
Guarantor hereby waives any right or remedy to require that any
action on this Guarantee be brought first against the Trust or
any other person or entity before proceeding directly against the
Guarantor.
15
SECTION 5.5 Guarantee of Payment.
This 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 Capital Securities against the Trust in
respect of any amounts paid to such Holders by the Guarantor
under this 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 right that it may
acquire by way of subrogation of any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this
Guarantee, if at the time of any such payment, any amounts are
due and unpaid under this 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 Guarantee Trustee for the benefit
of the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Trust with
respect to the 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 Guarantee notwithstanding
the occurrence of any event referred to in subsections 5.3(a)
through 5.3(g), inclusive, hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
16
SECTION 6.1 Limitation of Transactions.
So long as any Capital Securities remain outstanding, if there
shall have occurred a Guarantee Event of Default or a Trust
Enforcement Event, then the Guarantor shall not, and shall not
permit any subsidiary of the Guarantor, to (i) declare or pay
any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, the
Guarantor's capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Guarantor that rank pari
passu with or junior to the Debentures or make any guarantee
payments with respect to any guarantee by the Guarantor of the
debt securities of any subsidiary of the Guarantor if such
guarantee ranks pari passu with or junior to the Debentures
(other than (a) repurchases, redemptions or other acquisitions
of shares of capital stock of the Company in connection with
any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, or in connection
with a dividend reinvestment or stockholder stock purchase
plan, (b) as a result of an exchange or conversion of any class
or series of the Company's capital stock (or any capital stock
of a subsidiary of the Company) for any class or series of the
Company's capital stock or of any class or series of the
Company's indebtedness for any class or series of the Company's
capital stock, (c) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a
dividend in connection with any stockholder's rights plans, or
the issuance of rights, stock or other property under any
stockholder's rights plan, or the redemption or repurchase of
rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend
stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the
dividend is being paid (or ranks pari passu with or junior to
such stock).
SECTION 6.2 Ranking.
This Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate and
junior in right of payment to all other liabilities of the
Guarantor, except those liabilities of the Guarantor made pari
passu or subordinate by their terms.
If a Trust Enforcement Event has occurred and is
continuing under the Declaration, the rights of the holders of
the Common Securities to receive Guarantee Payments hereunder
shall be subordinated to the rights of the holders of the
Capital Securities to receive payment of all amounts due and
owing hereunder.
ARTICLE 7
TERMINATION
17
SECTION 7.1 Termination.
This Guarantee shall terminate upon (i) full payment
of the Redemption Price of all Capital Securities, (ii) upon
the distribution of the Debentures to the Holders of all the
Capital Securities or (iii) upon full payment of the amounts
payable in accordance with the Declaration upon liquidation of
the Trust. Notwithstanding the foregoing, this Guarantee will
continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of Capital Securities must
restore payment of any sums paid under the Capital Securities
or under this Guarantee.
ARTICLE 8
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 performed or omitted by such Indemnified
Person in good faith in accordance with this 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 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 or
willful misconduct 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 Guarantor and upon
such information, opinions, reports or statements presented to
the Guarantor by any Person as to any matter the Indemnified
Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, 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 Capital Securities might properly be
paid.
SECTION 8.2 Indemnification.
The Guarantor agrees to indemnify each Indemnified
Person for, and to hold each Indemnified Person harmless against
any and all loss, liability, damage, claims or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against,
or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of this Guarantee.
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ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this
Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Capital Securities then
outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not
adversely affect the rights of the Holders (in which case no
consent of the Holders will be required), this Guarantee may
only be amended with the prior approval of the Holders of at
least a Majority in Liquidation Amount of the Capital
Securities. The provisions of Section 12.2 of the Declaration
with respect to meetings of, and action by written consent of
the Holders of the Capital Securities apply to the giving of
such approval.
SECTION 9.3 Notices.
All notices provided for in this Guarantee shall be
in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by registered or
certified 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 Guarantor and the Holders of the Capital
Securities):
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If given to the Guarantor, at the Guarantor's
mailing addresses set forth below (or such other address as
the Guarantor may give notice of to the Guarantee Trustee
and the Holders of the Capital Securities):
GreenPoint Financial Corp.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If given to any Holder of Capital Securities, at
the address set forth on the books and records of the
Trust.
All such notices shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to
deliver.
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SECTION 9.4 Benefit.
This Guarantee is solely for the benefit of the
Holders of the Capital Securities and, subject to Section 3.1(a),
is not separately transferable from the Capital Securities.
SECTION 9.5 Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, this Guarantee is executed as of
the day and year first above written.
GREENPOINT FINANCIAL CORP.,
as Guarantor
By:_______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By:_______________________________
Name:
Title:
