---------------------------------------------------------------------------
DIME COMMUNITY BANCSHARES, INC.
--------------------------------------
INDENTURE
Dated as of March 19, 2004
--------------------------------------
Wilmington Trust Company,
as Indenture Trustee
--------------------------------------
FIXED RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBT SECURITIES
------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS.................................................................................1
SECTION 1.01 Definitions..............................................................................1
SECTION 1.02 Business Day Certificate.................................................................9
ARTICLE II DEBT SECURITIES.............................................................................9
SECTION 2.01 Authentication and Dating................................................................9
SECTION 2.02 Form of Indenture Trustee's Certificate of Authentication...............................10
SECTION 2.03 Form and Denomination of Debt Securities................................................10
SECTION 2.04 Execution of Debt Securities............................................................11
SECTION 2.05 Legends.................................................................................11
SECTION 2.06 Global Security.........................................................................12
SECTION 2.07 Computation of Interest.................................................................13
SECTION 2.08 Extension of Interest Payment Period....................................................14
SECTION 2.09 Transfer and Exchange...................................................................15
SECTION 2.10 Mutilated, Destroyed, Lost or Stolen Debt Securities....................................17
SECTION 2.11 Temporary Securities....................................................................18
SECTION 2.12 Cancellation............................................................................19
SECTION 2.13 CUSIP Numbers...........................................................................19
ARTICLE III PARTICULAR COVENANTS OF THE COMPANY........................................................19
SECTION 3.01 Payment of Principal and Interest: Agreed Treatment of the Debt Securities.............19
SECTION 3.02 Offices for Notices and Payments, etc...................................................20
SECTION 3.03 Appointments to Fill Vacancies in Indenture Trustee's Office............................21
SECTION 3.04 Provision as to Paying Agent............................................................21
SECTION 3.05 Certificate to Indenture Trustee........................................................22
SECTION 3.06 Additional Amounts......................................................................22
SECTION 3.07 Compliance with Consolidation Provisions................................................23
SECTION 3.08 Limitation on Dividends.................................................................23
SECTION 3.09 Covenants as to Dime Community Capital Trust I..........................................23
SECTION 3.10 Payment of Expenses.....................................................................24
SECTION 3.11 Payment Upon Resignation or Removal.....................................................24
ARTICLE IV LIST OF SECURITYHOLDERS AND REPORTS BY THE COMPANY AND THE INDENTURE TRUSTEE...............25
SECTION 4.01 List of Securityholders.................................................................25
SECTION 4.02 Preservation and Disclosure of Lists....................................................25
SECTION 4.03 Reports by the Company..................................................................26
SECTION 4.04 Reports by the Indenture Trustee........................................................27
TABLE OF CONTENTS (CONT'D.)
PAGE
----
ARTICLE V REMEDIES OF THE INDENTURE TRUSTEE AND SECURITYHOLDERS UPON EVENT OF DEFAULT................28
SECTION 5.01 Events of Default.......................................................................28
SECTION 5.02 Payment of Debt Securities on Default; Suit Therefor....................................30
SECTION 5.03 Application of Moneys Collected by Indenture Trustee....................................31
SECTION 5.04 Proceedings by Securityholders..........................................................31
SECTION 5.05 Proceedings by Indenture Trustee........................................................32
SECTION 5.06 Remedies Cumulative and Continuing......................................................33
SECTION 5.07 Restoration of Rights and Remedies......................................................33
SECTION 5.08 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders..........33
SECTION 5.09 Notice of Defaults......................................................................34
SECTION 5.10 Undertaking to Pay Costs................................................................35
ARTICLE VI CONCERNING THE INDENTURE TRUSTEE...........................................................35
SECTION 6.01 Duties and Responsibilities of Indenture Trustee........................................35
SECTION 6.02 Reliance on Documents, Opinions, etc....................................................37
SECTION 6.03 No Responsibility for Recitals, etc.....................................................38
SECTION 6.04 Indenture Trustee, Authenticating Agent, Paying Agents, Transfer Agents and Registrar
May Own Debt Securities.................................................................38
SECTION 6.05 Moneys to be Held in Trust..............................................................38
SECTION 6.06 Compensation and Expenses of Indenture Trustee..........................................39
SECTION 6.07 Officers' Certificate as Evidence.......................................................39
SECTION 6.08 Conflicting Interest of Indenture Trustee...............................................40
SECTION 6.09 Eligibility of Indenture Trustee........................................................40
SECTION 6.10 Resignation or Removal of Indenture Trustee.............................................40
SECTION 6.11 Acceptance by Successor Indenture Trustee; Supplemental Indenture.......................42
SECTION 6.12 Succession by Merger, etc...............................................................42
SECTION 6.13 Limitation on Rights of Indenture Trustee as a Creditor.................................43
SECTION 6.14 Authenticating Agents...................................................................43
ARTICLE VII CONCERNING THE SECURITYHOLDERS.............................................................44
SECTION 7.01 Action by Securityholders...............................................................44
SECTION 7.02 Proof of Execution by Securityholders...................................................45
SECTION 7.03 Who Are Deemed Absolute Owners..........................................................45
SECTION 7.04 Debt Securities Owned by Company Deemed Not Outstanding.................................45
SECTION 7.05 Revocation of Consents; Future Holders Bound............................................46
ARTICLE VIII MEETINGS OF SECURITYHOLDERS................................................................46
SECTION 8.01 Purposes of Meetings....................................................................46
SECTION 8.02 Call of Meetings by Indenture Trustee...................................................47
SECTION 8.03 Call of Meetings by Company or Securityholders..........................................47
-ii-
TABLE OF CONTENTS (CONT'D.)
PAGE
----
SECTION 8.04 Qualifications for Voting...............................................................47
SECTION 8.05 Regulations.............................................................................47
SECTION 8.06 Voting..................................................................................48
SECTION 8.07 Quorum; Actions.........................................................................48
ARTICLE IX AMENDMENTS.................................................................................49
SECTION 9.01 Supplemental Indentures without Consent of Securityholders..............................49
SECTION 9.02 Supplemental Indentures with Consent of Securityholders.................................51
SECTION 9.03 Compliance with Trust Indenture Act; Effect of Supplemental Indentures..................52
SECTION 9.04 Notation on Debt Securities.............................................................52
SECTION 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to Indenture Trustee...52
ARTICLE X REDEMPTION OF DEBT SECURITIES..............................................................52
SECTION 10.01 Optional Redemption.....................................................................52
SECTION 10.02 Special Event Redemption................................................................53
SECTION 10.03 Notice of Redemption; Selection of Debt Securities......................................53
SECTION 10.04 Payment of Debt Securities Called for Redemption........................................54
ARTICLE XI CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE................................54
SECTION 11.01 Company May Consolidate, etc., on Certain Terms.........................................54
SECTION 11.02 Successor Person to be Substituted for Company..........................................55
SECTION 11.03 Opinion of Counsel to be Given Indenture Trustee........................................55
ARTICLE XII SATISFACTION AND DISCHARGE OF INDENTURE....................................................55
SECTION 12.01 Discharge of Indenture..................................................................55
SECTION 12.02 Deposited Moneys to be Held in Trust by Indenture Trustee...............................56
SECTION 12.03 Paying Agent to Repay Moneys Held.......................................................56
SECTION 12.04 Return of Unclaimed Moneys..............................................................56
ARTICLE XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS............................57
SECTION 13.01 Indenture and Debt Securities Solely Corporate Obligations..............................57
ARTICLE XIV MISCELLANEOUS PROVISIONS...................................................................57
SECTION 14.01 Successors..............................................................................57
SECTION 14.02 Official Acts by Successor Company......................................................57
SECTION 14.03 Surrender of Company Powers.............................................................57
SECTION 14.04 Addresses for Notices, etc..............................................................58
-iii-
TABLE OF CONTENTS (CONT'D.)
PAGE
----
SECTION 14.05 Governing Law...........................................................................58
SECTION 14.06 Evidence of Compliance with Conditions Precedent........................................58
SECTION 14.07 Business Day Convention.................................................................59
SECTION 14.08 Trust Indenture Act to Control..........................................................59
SECTION 14.09 Table of Contents, Headings, etc........................................................59
SECTION 14.10 Execution in Counterparts...............................................................59
SECTION 14.11 Separability............................................................................59
SECTION 14.12 Assignment..............................................................................60
ARTICLE XV SUBORDINATION OF DEBT SECURITIES...........................................................60
SECTION 15.01 Agreement to Subordinate................................................................60
SECTION 15.02 Default on Senior Debt..................................................................60
SECTION 15.03 Liquidation; Dissolution; Bankruptcy....................................................61
SECTION 15.04 Subrogation.............................................................................62
SECTION 15.05 Indenture Trustee to Effectuate Subordination...........................................63
SECTION 15.06 Notice by the Company...................................................................63
SECTION 15.07 Rights of the Indenture Trustee; Holders of Senior Debt.................................64
SECTION 15.08 Subordination May Not Be Impaired.......................................................64
Exhibit A Form of Debt Security
-iv-
Tie Sheet of provisions of Trust Indenture Act of 1939 with Indenture dated as
of March 19, 2004 between Dime Community Bancshares, Inc. and Wilmington Trust
Company, as Indenture Trustee:
ACT SECTION INDENTURE
SECTION
310(a)(1) .......................................................................6.09
(a)(2) ...........................................................6.09, 6.10, 6.11
310(a)(3) ........................................................................N/A
(a)(4) ........................................................................N/A
310(a)(5) ...........................................................6.09, 6.10, 6.11
310(b) .......................................................................6.08
310(c) ........................................................................N/A
311(a) .......................................................................6.13
311(b) .......................................................................6.13
311(c) ........................................................................N/A
312(a) .........................................................4.01(a)and 4.02(a)
312(b) ....................................................................4.02(b)
312(c) ....................................................................4.02(c)
313(a) ....................................................................4.04(a)
313(b)(1) ....................................................................4.04(a)
313(b)(2) ....................................................................4.04(a)
313(c) ....................................................................4.04(a)
313(d) ....................................................................4.04(b)
314(a) .................................................................3.05, 4.03
314(b) ........................................................................N/A
314(c)(1) .............................................................6.07 and 14.06
314(c)(2) .............................................................6.07 and 14.06
314(c)(3) ........................................................................N/A
314(d) ........................................................................N/A
314(e) ................................................................6.07, 14.06
314(f) ........................................................................N/A
315(a)(c) and .......................................................................6.01
(d)
315(b) .......................................................................5.09
315(e) .......................................................................5.10
316(a)(1) .......................................................................5.08
316(a)(2) ........................................................................N/A
316(a) last sentence.....................................................................7.04
316(b) ....................................................................5.07 and 9.02
316(c) ....................................................................7.01 and 9.02
317(a) .......................................................................5.05
317(b) .......................................................................6.05
318 ......................................................................14.08
---------------------
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED
THIS INDENTURE, dated as of March 19, 2004, between Dime Community
Bancshares, Inc., a Delaware corporation (hereinafter called the "Company"), and
Wilmington Trust Company, a Delaware banking corporation, as trustee
(hereinafter sometimes called the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issuance of its Fixed Rate Junior Subordinated Deferrable
Interest Debt Securities due 2034 (the "Debt Securities") under this Indenture
and to provide, among other things, for the execution and authentication,
delivery and administration thereof, the Company has duly authorized the
execution of this Indenture.
NOW, THEREFORE, in consideration of the premises, and the purchase of
Debt Securities by the holders thereof, the Company covenants and agrees with
the Indenture Trustee for the equal and proportionate benefit of the respective
holders from time to time of the Debt Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any Indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. All other terms used in this
Indenture which are defined in the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), or which are by reference therein defined in the
Securities Act of 1933, as amended (the "Securities Act"), shall (except as
herein otherwise expressly provided or unless the context otherwise requires)
have the meanings assigned to such terms in said Trust Indenture Act and in the
Securities Act as in force at the date of this Indenture as originally executed.
The following terms have the meanings given to them in the Declaration (as
defined below): (i) Institutional Trustee; (ii) Delaware Trustee; (iii)
Administrators; (iv) Distributions; and (v) Initial Purchaser. All accounting
terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" means such accounting principles
as are generally accepted in the United States at the time of any computation.
The words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision. Headings are used for convenience of reference only and do
not affect interpretation. The singular includes the plural and vice versa.
"Additional Amounts" has the meaning set forth in Section 3.06.
"Additional Provisions" has the meaning set forth in Section 15.01.
"Administrative Action" has the meaning specified within the definition
of "Tax Event".
"Affiliate" shall have the meaning given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Authenticating Agent" means any agent or agents of the Indenture
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the board of directors or the executive
committee or any other duly authorized committee of the Company's board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Indenture Trustee.
"Book-Entry Capital Securities" shall have the meaning set forth in
Section 2.06(a)(i).
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in Wilmington, Delaware or New York, New York are
permitted or required by law, executive order or regulation to close.
"Capital Securities" means undivided beneficial interests in the assets
of the Trust which are designated as "Capital Securities" and rank PARI PASSU
with the Common Securities issued by the Trust; PROVIDED, HOWEVER, that if an
Event of Default (as defined in the Declaration) has occurred and is continuing,
the rights of holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of the holders of the Capital Securities. References
to "Capital Securities" shall include, collectively, any Series A Capital
Securities and Series B Capital Securities (as such terms are defined in the
Declaration).
"Capital Treatment Event" means the receipt by the Company and the
Trust of an Opinion of Counsel experienced in such matters to the effect that,
as a result of any amendment to, or change in, any laws, rules or regulations of
the United States or any political subdivision thereof or therein or any rules,
guidelines or policies of an applicable regulatory agency or authority, or as
the result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws, rules or regulations, which
amendment or change is effective or which pronouncement, action or judicial
decision is announced on or after the date of original issuance of the Initial
Securities, there is more than an insubstantial risk that the Company will not,
within 90 days of the date of such opinion, be entitled to treat an amount equal
to the aggregate Liquidation Amount of the Capital Securities as "Tier 1
Capital" (or its then equivalent) if the Company (or its successors) were
subject to such capital requirement, applied as if the Company (or its
successors) were a bank holding company for purposes of the capital adequacy
guidelines of the Federal Reserve (or any successor regulatory authority with
jurisdiction over bank holding companies), or any capital adequacy guidelines as
then in effect and applicable to the Company; PROVIDED, HOWEVER, that the
distribution of the Debt Securities in connection with a Dissolution Event shall
not in and of itself constitute a Capital Treatment
-2-
Event unless such Dissolution Event shall have occurred in connection with a Tax
Event or an Investment Company Event.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities" means undivided beneficial interests in the assets
of the Trust which are designated as "Common Securities" and rank PARI PASSU
with Capital Securities issued by the Trust; PROVIDED, HOWEVER, that if an Event
of Default (as defined in the Declaration) has occurred and is continuing, the
rights of holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of such Capital Securities.
"Company" means the person identified as "Company" in the preamble to
this Indenture and, subject to the provisions of Article XI, shall also include
its successors and assigns.
"Company Order" means a written request or order signed in the name of
the Company by an officer and delivered to the Indenture Trustee.
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" means collectively, the Initial
Securities and the Exchange Securities.
"Debt Security Register" means (i) prior to a Dissolution Event, the
list of holders provided to the Indenture Trustee pursuant to Section 4.01, and
(ii) following a Dissolution Event, any debt security register maintained by a
security registrar for the Debt Securities appointed by the Company following
the execution of a supplemental indenture providing for transfer procedures as
provided for in Section 2.09(a).
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated as of March 19, 2004, by and among the Trustees (as defined
therein), the Administrators, the Company, as sponsor, and the holders from time
to time of undivided beneficial interest in the assets of the Trust, as amended
or supplemented from time to time.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 2.07(c).
"Deferred Interest" has the meaning set forth in Section 2.08.
-3-
"Definitive Securities" means those Debt Securities issued in fully
registered certificated form.
"Depositary" means, with respect to the Debt Securities which the
Company determines shall be issued as a Global Security, The Depository Trust
Company, New York, New York, or another clearing agency, or any successor
registered as a clearing agency pursuant to Section 17A of the Exchange Act or
other applicable statute or regulation, which, in each case, shall be designated
by the Company pursuant to Section 2.06(c).
"Dissolution Event" means any event resulting in the dissolution of the
Trust pursuant to the Declaration, and the distribution of the Debt Securities
held by the Indenture Trustee to the holders of the Trust Securities issued by
the Trust PRO RATA in accordance with the Declaration.
"Event of Default" means any event specified in Section 5.01, which has
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Exchange Offer" means the offer that may be made pursuant to the
Registration Rights Agreement (i) by the Company to exchange the Exchange
Securities for the Initial Securities and to execute the Series B Guarantee in
respect of the Series B Capital Securities and (ii) by the Trust to exchange the
Series B Capital Securities for the Series A Capital Securities.
"Exchange Securities" means the Company's Fixed Rate Junior
Subordinated Deferrable Interest Debt Securities due 2034, Series B, as
authenticated and issued under this Indenture.
"Extension Period" has the meaning set forth in Section 2.08.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Security" means, with respect to the Debt Securities, a Debt
Security executed by the Company and delivered by the Indenture Trustee to the
Depositary or pursuant to the Depositary's instruction or, if no instructions
are received, then held by the Indenture Trustee as custodian for the
Depository, all in accordance with this Indenture, which Debt Security shall be
registered in the name of the Depositary or its nominee.
"Guarantee" means any guarantee agreement that the Company will enter
into with Wilmington Trust Company or any other Person that operates directly or
indirectly for the benefit of holders of Capital Securities.
"Indenture" means this Indenture as originally executed or, if amended
or supplemented as herein provided, as so amended or supplemented, or both.
"Indenture Trustee" means the Person identified as "Indenture Trustee"
in the preamble to this Indenture and, subject to the provisions of Article VI
hereof, shall also include its successors and assigns.
-4-
"Initial Securities" means the Company's Fixed Rate Junior Subordinated
Deferrable Interest Debt Securities due 2034, Series A, as authenticated and
issued under this Indenture.
"Interest Payment Date" means January 15th, April 15th, July 15th, and
October 15th of each year commencing on July 15, 2004 and the Maturity Date, an
Optional Redemption Date or the Special Redemption Date, as applicable, subject
to Section 14.07.
"Interest Period" has the meaning set forth in Section 2.07(b).
"Interest Rate" means a fixed rate per annum equal to 7.0%, plus the
rate of any applicable Liquidated Damages.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Company and the
Trust of an Opinion of Counsel experienced in such matters to the effect that as
a result of any amendment to, or change in, the laws, rules or regulations of
the United States or any political subdivision thereof or therein, or as the
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws, rules or regulations, which
amendment or change is effective or which pronouncement, action or decision is
announced on or after the date of original issuance of the Initial Securities,
there is more than an insubstantial risk that the Trust is, or within 90 days of
the date of such opinion will be, considered an Investment Company that is
required to be registered under the Investment Company Act.
"Like Amount" means (i) with respect to a redemption of the Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debt Securities to be paid in accordance with their terms and (ii)
with respect to a distribution of Debt Securities upon a Dissolution Event, Debt
Securities having a principal amount equal to the Liquidation Amount of the
Trust Securities of the holder to whom Debt Securities are distributed.
"Liquidated Damages" shall have the meaning set forth in the
Registration Rights Agreement and the Liquidated Damages Agreement.
"Liquidated Damages Agreement" means the Liquidated Damages Agreement,
dated as of March 12, 2004, by and among the Company, the Trust and the Initial
Purchaser named therein, as such agreement may be amended, modified or
supplemented from time to time.
"Liquidation Amount" means the liquidation amount of $1,000 per Trust
Security.
"Maturity Date" means April 14, 2034.
"Non Book-Entry Capital Securities" shall have the meaning set forth in
Section 2.06(a)(ii).
-5-
"OTS" means the Office of Thrift Supervision or any successor
regulatory agency.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman, the Chief Executive Officer, the President or any
Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 14.06 if and to
the extent required by the provisions of such Section.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or may be other
counsel reasonably acceptable to the Indenture Trustee. Each such opinion shall
include the statements provided for in Section 14.06 if and to the extent
required by the provisions of such Section.
"Optional Redemption Date" has the meaning set forth in Section 10.01.
"Optional Redemption Price" means an amount in cash equal to 100% of
the principal amount of the Debt Securities to be redeemed, plus unpaid interest
and Liquidated Damages, if any, accrued thereon to but excluding the related
Optional Redemption Date.
"Paying Agent" has the meaning set forth in Section 3.04(a).
"Person" means any legal person, including any individual, corporation,
estate, partnership, joint venture, national banking association, association,
joint-stock company, limited liability company, trust, unincorporated
association or government or any agency or political subdivision thereof or any
other entity of whatever nature.
"Predecessor Securities" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 2.10 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Principal Office of the Indenture Trustee," means the office of the
Indenture Trustee, at which at any particular time its corporate trust business
shall be principally administered, and at the time of the execution of this
Indenture shall be, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000-0000.
"Purchase Agreement" means the Purchase Agreement, dated March 12,
2004, by and among the Company, the Trust, The Dime Savings Bank of
Williamsburgh and the Initial Purchaser named therein.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 12, 2004, by and among the Company, the Trust and
the Initial Purchaser named therein, as such agreement may be amended, modified
or supplemented from time to time.
"Regular Record Date" shall mean 15th calendar day prior to the
applicable Interest Payment Date, whether or not such day is a Business Day.
-6-
"Resale Restriction Termination Date" means, with respect to any Debt
Security, the date which is the later of (i) two years (or such shorter period
of time as permitted by Rule 144(k) under the Securities Act) after the later of
(y) the date of original issuance of such Debt Security and (z) the last date on
which the Company or any Affiliate of the Company was the holder of such Debt
Security (or any predecessor thereto) and (ii) such later date, if any, as may
be required by any subsequent change in applicable law.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Principal Office of the Indenture Trustee with direct
responsibility for the administration of the Indenture, including any
vice-president, any assistant vice-president, any secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or other
officer of the Principal Office of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Restricted Securities" means Debt Securities that bear or are required
to bear the legends relating to transfer restrictions under the Securities Act
set forth in Exhibit A hereto.
"Rule 144A" means Rule 144A under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Securityholder," "holder of Debt Securities," or other similar terms,
means any Person in whose name at the time a particular Debt Security is
registered in the Debt Security Register.
"Senior Debt" means, with respect to the Company, (i) the principal,
premium, if any, and interest in respect of (A) indebtedness of the Company for
money borrowed and (B) indebtedness evidenced by securities, debentures, notes,
bonds or other similar instruments issued by the Company including, without
limitation its 9.75% Subordinated Notes due May 1, 2010; (ii) all capital lease
obligations of the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement of any letter of credit, any banker's acceptance, any security
purchase facility, any repurchase agreement or similar arrangement, any interest
rate swap, any other hedging arrangement, any obligation under options or any
similar credit or other transaction; (v) all obligations of the type referred to
in clauses (i) through (iv) above of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise; and (vi)
all obligations of the type referred to in clauses (i) through (v) above of
other Persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), whether incurred on
or prior to the date of this Indenture or thereafter incurred, unless, with the
prior approval of the OTS (or such other bank regulatory authority that is then
the primary holding company regulator of the Company) if not otherwise generally
approved, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations are not superior
or are PARI PASSU in right of payment to the Debt Securities; PROVIDED, HOWEVER,
that Senior Debt shall not include (A) any debt securities issued to any trust
other than the Trust (or a trustee of such trust), partnership or
-7-
other entity affiliated with the Company that is a financing entity of the
Company (a "financing entity"), in connection with the issuance by such
financing entity of equity securities or other securities in transactions
substantially similar in structure to the transactions contemplated hereunder
and in the Declaration or (B) any guarantees of the Company in respect of the
equity securities or other securities of any financing entity referred to in
clause (A) above pursuant to an instrument that ranks PARI PASSU with in right
of payment to the Guarantee.
"Series B Guarantee" means the Series B Guarantee of the Company to be
entered into in connection with the Exchange Offer in respect of the Series B
Capital Securities.
"Special Event" means any of an Investment Company Event, a Capital
Treatment Event or a Tax Event, as the context requires.
"Special Redemption Date" has the meaning set forth in Section 10.02.
"Special Redemption Price" means, with respect to the redemption of any
Debt Security following a Special Event, an amount in cash equal to the
percentage of the principal amount of the Debt Securities that is specified
below for the Special Redemption Date plus, in each case, unpaid interest and
Liquidated Damages, if any, accrued thereon to but excluding the Special
Redemption Date:
Special Redemption Price will be 103.5%
to but excluding April 15, 2005
and thereafter will be as follows for the
12-month period beginning April 15, Percentage of Principal Amount
----------------------------------- ------------------------------
2005 102.8%
2006 102.1%
2007 101.4%
2008 100.7%
2009 and thereafter 100%
"Subsidiary" means with respect to any Person, (i) any corporation at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture, limited liability company or similar entity, at least a majority of
whose outstanding partnership, membership or similar interests shall at the time
be owned by such Person or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner. For the purposes of
this definition, "voting stock" means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of
-8-
such Person, other than shares, interests, participations or other equivalents
having such power only by reason of the occurrence of a contingency.
"Tax Event" means the receipt by the Company and the Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of any amendment to, clarification of or change (including any announced
prospective change) in, the laws or any regulations thereunder of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement (including any private
letter ruling, technical advice memorandum, regulatory procedure, notice or
announcement (an "Administrative Action")) or judicial decision interpreting or
applying such laws or regulations, regardless of whether such Administrative
Action or judicial decision is issued to or in connection with a proceeding
involving the Company or the Trust and whether or not subject to review or
appeal, which amendment, clarification, change, Administrative Action or
decision is enacted, promulgated or announced, in each case on or after the date
of original issuance of the Initial Securities, there is more than an
insubstantial risk that: (i) the Trust is, or will be within 90 days of the date
of such opinion, subject to United States federal income tax with respect to
income received or accrued on the Debt Securities; (ii) interest payable by the
Company on the Debt Securities is not, or within 90 days of the date of such
opinion, will not be, deductible by the Company, in whole or in part, for United
States federal income tax purposes; or (iii) the Trust is, or will be within 90
days of the date of such opinion, subject to or otherwise required to pay, or
required to withhold from distributions to holders of Trust Securities, more
than a DE MINIMIS amount of other taxes (including withholding taxes), duties,
assessments or other governmental charges.
"Trust" means Dime Community Capital Trust I, a Delaware statutory
trust created for the purpose of issuing its Capital Securities in connection
with the issuance of Debt Securities under this Indenture of which the Company
is the sponsor.
"Trust Securities" means, collectively, the Capital Securities and the
Common Securities.
SECTION 1.02 BUSINESS DAY CERTIFICATE.
On the date of execution and delivery of this Indenture (with respect
to the remainder of calendar year 2004) and within 15 days prior to the end of
each calendar year while this Indenture remains in effect (with respect to
succeeding calendar years), the Company shall deliver to the Indenture Trustee
an Officers' Certificate specifying the days on which banking institutions or
trust companies in New York, New York or Wilmington, Delaware are then
authorized or obligated by law, executive order or regulation to remain closed.
ARTICLE II
DEBT SECURITIES
SECTION 2.01 AUTHENTICATION AND DATING.
Upon the execution and delivery of this Indenture, or from time to time
thereafter, Debt Securities in an aggregate principal amount not in excess of
$72,165,000 may be executed and delivered by the Company to the Indenture
Trustee for authentication, and the Indenture Trustee shall thereupon
authenticate and make available for delivery said Debt Securities to or upon the
-9-
written order of the Company, signed by its Chairman of the Board of Directors,
Vice Chairman, President or Chief Financial Officer or one of its Vice
Presidents, without any further action by the Company hereunder. In
authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Indenture Trustee shall be entitled to receive, and (subject to Section 6.01)
shall be fully protected in relying upon a copy of any Board Resolution or Board
Resolutions relating thereto and, if applicable, an appropriate record of any
action taken pursuant to such resolution, in each case certified by the
Secretary or an Assistant Secretary or other officers with appropriate delegated
authority of the Company as the case may be.
The Indenture Trustee shall have the right to decline to authenticate
and deliver any Debt Securities under this Section if the Indenture Trustee,
being advised by counsel, determines that such action may not lawfully be taken
or if a Responsible Officer of the Indenture Trustee in good faith shall
determine that such action would expose the Indenture Trustee to personal
liability to existing Securityholders.
The definitive Debt Securities shall be typed, printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
SECTION 2.02 FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Indenture Trustee's certificate of authentication on all Debt
Securities shall be in substantially the following form:
This is one of the Debt Securities of the Company referred to in the
within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee
By:
-------------------------------------
Authorized Officer
SECTION 2.03 FORM AND DENOMINATION OF DEBT SECURITIES.
The Debt Securities shall be substantially in the form of Exhibit A
hereto and shall be issuable in minimum denominations of $100,000 and any
multiple of $1,000 in excess thereof. The Debt Securities shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such
plans as the officers executing the same may determine with the approval of the
Indenture Trustee as evidenced by the execution and authentication thereof.
-10-
SECTION 2.04 EXECUTION OF DEBT SECURITIES.
The Debt Securities shall be signed in the name and on behalf of the
Company by the manual or facsimile signature of its Chairman of the Board of
Directors, Vice Chairman, President or Chief Financial Officer or one of its
Executive Vice Presidents, Senior Vice Presidents or Vice Presidents, under its
corporate seal (if legally required) which may be affixed thereto or printed,
engraved or otherwise reproduced thereon, by facsimile or otherwise, and which
need not be attested. Only such Debt Securities as shall bear thereon a
certificate of authentication substantially in the form herein before recited,
executed by the Indenture Trustee or the Authenticating Agent by the manual
signature of an authorized officer, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Indenture Trustee or the Authenticating Agent upon any Debt Security executed by
the Company shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Indenture Trustee or
the Authenticating Agent, or disposed of by the Company, such Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities had not ceased to be such officer of the
Company; and any Debt Security may be signed on behalf of the Company by such
Persons as, at the actual date of the execution of such Debt Security, shall be
the proper officers of the Company, although at the date of the execution of
this Indenture any such person was not such an officer.
Every Debt Security shall be dated the date of its authentication.
SECTION 2.05 LEGENDS.
(a) Except as permitted by subsection (b) of this Section 2.05, or as
otherwise determined by the Company in accordance with applicable law, prior to
the Resale Restriction Termination Date, each Debt Security shall bear the
applicable legends relating to restrictions on transfer pursuant to the
Securities Act and any other applicable securities laws in substantially the
form set forth in Exhibit A hereto.
(b) In the event of an Exchange Offer, the Company shall issue and the
Indenture Trustee, upon receipt of a Company Order to do so, shall authenticate
Exchange Securities in exchange for Initial Securities accepted for exchange in
the Exchange Offer, which Exchange Securities shall not bear the legends
required by subsection (a) of this Section 2.05, in each case, as determined by
the Company, unless the holder of such Initial Securities is either (A) a
broker-dealer who purchased such Initial Securities directly from the Company
for resale pursuant to Rule 144A or any other available exemption under the
Securities Act, (B) a Person participating in the distribution of the Initial
Securities or (C) a Person who is an Affiliate of the Company or the Trust.
-11-
SECTION 2.06 GLOBAL SECURITY.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-entry form
("Book-Entry Capital Securities"), the Company shall execute and deliver to the
Indenture Trustee a Like Amount of Global Securities and, upon presentment to
the Indenture Trustee of Definitive Securities by the Institutional Trustee
under the Declaration and receipt by the Indenture Trustee of a Company Order to
do so, the Indenture Trustee shall (1) authenticate such Global Securities to be
registered in the name of the Depositary, or its nominee, for crediting to the
accounts of the Depositary's participants representing the beneficial owners of
the Book-Entry Capital Securities tendered for exchange pursuant to the
instructions of the Administrators and (2) promptly cancel such Definite
Securities; and
(ii) if any Capital Securities are held in certificated form
("Non-Book Entry Capital Securities"), the Company shall execute and deliver to
the Indenture Trustee a Like Amount of Definitive Securities and, upon
presentment to the Indenture Trustee of Definitive Securities by the
Institutional Trustee under the Declaration and receipt by the Indenture Trustee
of a Company Order to do so, the Indenture Trustee shall (1) authenticate a Like
Amount of Definitive Securities to be registered in the name of, and delivered
to, (A) each holder of Non-Book-Entry Capital Securities presented by the
Institutional Trustee, as certified to the Indenture Trustee, or (B) the
Indenture Trustee, if and to the extent not so certified by the Institutional
Trustee and (2) promptly cancel all Definitive Securities presented to it by
such Institutional Trustee. Definitive Securities registered in the name of the
Indenture Trustee in accordance with the preceding sentence shall be deemed to
be represented by the Non-Book-Entry Capital Securities that have not been
presented to the Institutional Trustee for exchange.
(b) The Global Securities shall represent the aggregate amount of
outstanding Debt Securities from time to time endorsed thereon; PROVIDED,
HOWEVER, that the aggregate principal amount of outstanding Debt Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Security to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Debt Securities represented thereby shall be
made by the Indenture Trustee, in accordance with instructions given by the
Company pursuant to this Section 2.06.
(c) The Global Securities may be transferred, in whole but not in part,
only to the Depositary, to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such successor
Depositary.
(d) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered under the Exchange Act, and, in each case, a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case may
be, the Company will execute, and the Indenture Trustee, upon receipt of a
Company Order to do so, will authenticate and make available for delivery the
Definitive Securities, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities, as applicable, in exchange for such Global Security or Securities,
as
-12-
applicable. If there is a Default or an Event of Default, the Depositary shall
have the right to exchange the Global Security or Securities, as applicable, for
Definitive Securities. In addition, at the Company's request, the Depositary may
notify beneficial owners that they may request an exchange of their interests in
a Global Security for Definitive Securities. In the event of such an Event of
Default or such a request, the Company shall execute, and subject to Section
2.09, the Indenture Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company and a Company Order to do so, will
authenticate and make available for delivery the Definitive Securities, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities, as applicable, in
exchange for such Global Security or Securities, as applicable. Upon the
exchange of a Global Security for Definitive Securities, such Global Security,
shall be canceled by the Indenture Trustee. Such Definitive Securities issued in
exchange for the Global Security or Securities, as applicable shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Indenture Trustee. The Indenture Trustee shall deliver such
Definitive Securities to the Depositary for delivery to the Persons in whose
names such Definitive Securities are so registered.
SECTION 2.07 COMPUTATION OF INTEREST.
(a) The amount of interest payable for any Interest Period will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
(b) Each Debt Security will bear interest at the Interest Rate (i) in
the case of the initial Interest Period, for the period from, and including, the
date of original issuance of such Debt Security to, but excluding, the initial
Interest Payment Date and (ii) thereafter, for the period from, and including,
the first day following the end of the preceding Interest Period to, but
excluding, the applicable Interest Payment Date or, in the case of the last
Interest Period, the related Optional Redemption Date, Special Redemption Date
or Maturity Date, as applicable (each such period, an "Interest Period"), on the
principal thereof, on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on Deferred Interest and on
any overdue installment of interest (including Defaulted Interest), payable
(subject to the provisions of Article XII) on each Interest Payment Date.
Interest and any Deferred Interest on any Debt Security that is payable, and is
punctually paid or duly provided for by the Company, on any Interest Payment
Date shall be paid to the Person in whose name such Debt Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest installment, except that interest and any
Deferred Interest payable on the Maturity Date, any Optional Redemption Date or
the Special Redemption Date, as the case may be, shall be paid to the Person to
whom principal is paid. In case (i) the Maturity Date of any Debt Security or
(ii) any Debt Security or portion thereof is called for redemption and the
related Optional Redemption Date or the Special Redemption Date, as the case may
be, is subsequent to the Regular Record Date with respect to any Interest
Payment Date and either on or prior to such Interest Payment Date, interest on
such Debt Security will be paid upon presentation and surrender of such Debt
Security.
(c) Any interest on any Debt Security, other than Deferred Interest,
that is payable, but is not punctually paid or duly provided for by the Company,
on any Interest Payment Date other than the Maturity Date, an Optional
Redemption Date or the Special Redemption Date, as
-13-
applicable (herein called "Defaulted Interest") shall forthwith cease to be
payable to the holder on the relevant Regular Record Date by virtue of having
been such holder, and such Defaulted Interest shall be paid by the Company to
the Persons in whose names such Debt Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner: the Company shall notify the Indenture Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each such Debt Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Indenture Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements reasonably satisfactory to the Indenture Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
provided in this paragraph. Thereupon the Indenture Trustee shall fix a special
record date for the payment of such Defaulted Interest, which shall not be more
than 15 nor less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Indenture Trustee of the notice of
the proposed payment. The Indenture Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Debt Security
Register, not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Debt Securities (or their respective Predecessor
Securities) are registered on such special record date and thereafter the
Company shall have no further payment obligation in respect of the Defaulted
Interest.
(d) Any interest scheduled to become payable on an Interest Payment
Date occurring during an Extension Period shall not be Defaulted Interest and
shall be payable on such other date as may be specified in the terms of such
Debt Securities.
(e) Subject to the foregoing provisions of this Section 2.07, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other Debt
Security.
SECTION 2.08 EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, from time to time and without causing an Event of
Default, to defer payments of interest on the Debt Securities by extending the
interest payment period on the Debt Securities at any time and from time to time
during the term of the Debt Securities, for up to 20 consecutive quarterly
periods (each such extended interest payment period, together with all previous
and further consecutive extensions thereof, is referred to herein as an
"Extension Period"). No Extension Period may end on a date other than an
Interest Payment Date or extend beyond the Maturity Date, any Optional
Redemption Date or the Special Redemption Date, as the case may be. During any
Extension Period, interest will continue to accrue on the Debt Securities, and
interest on such accrued interest (such accrued interest and interest thereon
referred to herein as "Deferred Interest") will accrue at an annual rate equal
to the Interest Rate, compounded
-14-
quarterly from the date such Deferred Interest would have been payable were it
not for the Extension Period, to the extent permitted by applicable law. No
interest or Deferred Interest (except any Additional Amounts that may be due and
payable) shall be due and payable during an Extension Period, except at the end
thereof. At the end of any Extension Period, the Company shall pay all Deferred
Interest then accrued and unpaid on the Debt Securities; PROVIDED, HOWEVER, that
during any Extension Period, the Company shall be subject to the restrictions
set forth in Section 3.08. Prior to the termination of any Extension Period, the
Company may further extend such Extension Period, PROVIDED, THAT no Extension
Period (including all previous and further consecutive extensions that are part
of such Extension Period) shall exceed 20 consecutive quarterly periods. Upon
the termination of any Extension Period and upon the payment of all Deferred
Interest, the Company may commence a new Extension Period, subject to the
foregoing requirements. The Company must give the Indenture Trustee notice of
its election to begin or extend an Extension Period at least one Business Day
prior to the Regular Record Date applicable to the next Interest Payment Date.
The Indenture Trustee shall give notice of the Company's election to begin or
extend an Extension Period to the Securityholders.
SECTION 2.09 TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept, at the office or agency
maintained for the purpose of registration of transfer and for exchange, as
provided in Section 3.02, the Debt Security Register in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration and transfer of all Debt Securities as provided in this Article II.
The Debt Security Register shall be in written form or in any other form capable
of being converted into written form within a reasonable time.
Debt Securities to be exchanged may be surrendered at the Principal
Office of the Indenture Trustee or at any office or agency to be maintained by
the Company for such purpose as provided in Section 3.02, and the Company shall
execute, the Company or the Indenture Trustee shall register and the Indenture
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in exchange therefor, the Debt Security or Debt Securities which the
Securityholder making the exchange shall be entitled to receive. Upon due
presentment for registration of transfer of any Debt Security at the Principal
Office of the Trustee or at any office or agency of the Company maintained for
such purpose as provided in Section 3.02, the Company shall execute, the Company
or the Indenture Trustee shall register and the Indenture Trustee or the
Authenticating Agent shall authenticate and make available for delivery in the
name of the transferee or transferees, a new Debt Security for a like aggregate
principal amount. Registration or registration of transfer of any Debt Security
by the Indenture Trustee or by any agent of the Company appointed pursuant to
Section 3.02, and delivery of such Debt Security, shall be deemed to complete
the registration or registration of transfer of such Debt Security.
All Debt Securities presented for registration of transfer or for
exchange or payment shall (if so required by the Company or the Indenture
Trustee or the Authenticating Agent) be duly endorsed by, or be accompanied by,
a written instrument or instruments of transfer in form satisfactory to the
Company and either the Indenture Trustee or the Authenticating Agent duly
executed by, the holder or such holder's attorney duly authorized in writing.
-15-
(b) (i) Prior to the Resale Restriction Termination Date, the Initial
Securities, and those Exchange Securities with respect to which any Person
described in Section 2.05(b)(A), (B) or (C) is the beneficial owner may not be
transferred except in compliance with the legend contained in Exhibit A unless
otherwise determined by the Company in accordance with applicable law. Upon any
distribution of the Debt Securities following a Dissolution Event, the Company
and the Indenture Trustee shall enter into a supplemental indenture pursuant to
Section 9.01 to provide for the transfer restrictions and procedures with
respect to the Debt Securities substantially similar to those contained in the
Declaration to the extent applicable in the circumstances existing at such time.
(ii) The Debt Securities will be issued and may be transferred
only in minimum denominations of $100,000 and multiples of $1,000 in excess
thereof. Any attempted transfer of the Debt Securities in unauthorized
denominations shall be deemed to be void and of no legal effect whatsoever. Any
such purported transferee shall be deemed not to be a holder of such Debt
Securities for any purpose, including, but not limited to, the receipt of
payments on such Debt Securities, and such purported transferee shall be deemed
to have no interest whatsoever in such Debt Securities.
(c) To permit registrations of transfers and exchanges, the Company
shall execute and the Indenture Trustee, upon receipt of a Company Order to do
so, shall authenticate and deliver Definitive Securities and Global Securities
at the request of the security registrar for the Debt Securities. All Definitive
Securities and Global Securities issued upon any registration of transfer or
exchange of Definitive Securities or Global Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Definitive Securities or Global Securities
surrendered upon such registration of transfer or exchange.
Holders shall not be obligated to pay any service charge for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith, other than exchanges of Debt Securities pursuant to
Section 2.11, 9.04 or 10.04 not involving any transfer.
The Company shall not be required to: (i) issue, register the transfer
of or exchange Debt Securities during a period beginning at the opening of
business 15 calendar days before the day of mailing of a notice of redemption
under Article X hereof and ending at the close of business on the day of such
mailing; or (ii) register the transfer of or exchange any Debt Security so
selected for redemption in whole or in part, except the nonredeemed portion of
any Debt Security being redeemed in part.
Prior to due presentment for the registration of a transfer of any Debt
Security, the Indenture Trustee, the Company and any agent of the Indenture
Trustee or the Company may deem and treat the Person in whose name any Debt
Security is registered as the absolute owner and holder of such Debt Security
for the purpose of receiving payment of principal of and premium, if any, and
interest on such Debt Security and Liquidated Damages, if any, and none of the
Indenture Trustee, the Company or any agents of the Indenture Trustee or the
Company shall be affected by notice to the contrary.
-16-
(d) The Initial Securities may be exchanged for Exchange Securities
pursuant to the terms of the Exchange Offer. The Indenture Trustee shall make
the exchange as follows:
The Company shall present the Indenture Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Exchange Securities, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of Initial Securities properly tendered
in the Exchange Offer that are represented by a Global
Security, the principal amount of Initial Securities properly
tendered in the Exchange Offer that are represented by
Definitive Securities, the name of each holder of such
Definitive Securities and its principal amount and the name
and address to which Definitive Securities representing
Exchange Securities shall be registered and sent for each such
holder.
The Indenture Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Exchange Securities have
been registered under Section 5 of the Securities Act and the Indenture has been
qualified under the Trust Indenture Act and (y) with respect to the matters set
forth in Section 3(q) of the Registration Rights Agreement and (iii) a Company
Order to do so, shall authenticate (A) a Global Security representing Exchange
Securities in aggregate principal amount equal to the aggregate principal amount
of Initial Securities represented by a Global Security indicated in such
Officers' Certificate as having been properly tendered and (B) Definitive
Securities representing Exchange Securities in aggregate principal amount equal
to the aggregate principal amount of Initial Securities represented by
Definitive Securities registered in the names and in the respective principal
amounts indicated in such Officers' Certificate.
Upon any properly tendered and accepted Initial Securities in the
Exchange Offer that are represented by a Global Security, the Indenture Trustee
shall make an endorsement on such Global Security for Initial Securities
indicating a reduction in the principal amount represented thereby.
The Indenture Trustee shall deliver such Definitive Securities
representing Exchange Securities to the holders thereof as indicated in such
Officers' Certificate.
SECTION 2.10 MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES.
In case any Debt Security shall become mutilated or be destroyed, lost
or stolen, the Company shall execute, and upon receipt of a Company Order to do
so the Indenture Trustee shall authenticate and deliver, a new Debt Security
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Debt Security, or in lieu of and in substitution for the Debt
Security so destroyed, lost or stolen. In every case the applicant for a
substituted Debt Security shall furnish to the Company and the Indenture Trustee
such security or indemnity as may be reasonably required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and the
-17-
Indenture Trustee evidence to their reasonable satisfaction of the destruction,
loss or theft of such Debt Security and of the ownership thereof.
The Indenture Trustee may authenticate any such substituted Debt
Security and deliver the same upon receipt of a Company Order to do so. Upon the
issuance of any substituted Debt Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. In case
any Debt Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debt Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Debt Security) if the applicant for such payment shall furnish to the Company
and the Indenture Trustee such security or indemnity as may be reasonably
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence reasonably satisfactory to the Company and to the Indenture
Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
Every substituted Debt Security issued pursuant to the provisions of
this Section 2.10 by virtue of the fact that any such Debt Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Debt Security shall
be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities
duly issued hereunder. All Debt Securities shall be held and owned upon the
express condition that, to the extent permitted by applicable law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.11 TEMPORARY SECURITIES.
Pending the preparation of Definitive Securities, the Company may
execute, and upon receipt of a Company Order to do so, the Indenture Trustee
shall authenticate and make available for delivery, temporary Debt Securities
that are printed, lithographed, typewritten, mimeographed or otherwise
reproduced, in any authorized denomination, substantially of the tenor of the
Definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the proper officers
of the Company executing such Debt Securities may determine, as conclusively
evidenced by their execution of such Debt Securities.
If temporary Debt Securities are issued, the Company shall cause
Definitive Securities to be prepared without unreasonable delay. The Definitive
Securities shall be printed, lithographed or engraved, or provided by any
combination thereof, or in any other manner permitted by the rules and
regulations of any applicable securities exchange, all as determined by the
proper officers of the Company executing such Definitive Securities. After the
preparation of Definitive Securities, the temporary Debt Securities shall be
exchangeable for Definitive Securities upon surrender of the temporary Debt
Securities at the office or agency maintained by the Company for such purpose
pursuant to Section 3.02, without charge to the holder thereof. Upon surrender
-18-
for cancellation of any one or more temporary Debt Securities, the Company shall
execute, and the Indenture Trustee, upon receipt of a Company Order to do so,
shall authenticate and make available for delivery, in exchange therefor the
same aggregate principal amount of Definitive Securities in any authorized
denomination. Until so exchanged, the temporary Debt Securities shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Securities.
SECTION 2.12 CANCELLATION.
All Debt Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to the Company or
any Paying Agent, be surrendered to the Indenture Trustee and promptly canceled
by it, or, if surrendered to the Indenture Trustee or any Authenticating Agent,
shall be promptly canceled by it, and no Debt Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. All Debt Securities canceled by any Authenticating Agent shall be
delivered to the Indenture Trustee. The Indenture Trustee shall destroy all
canceled Debt Securities unless the Company otherwise directs the Indenture
Trustee in writing, in which case the Indenture Trustee shall dispose of such
Debt Securities as directed by the Company. If the Company shall acquire any of
the Debt Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Debt Securities unless
and until the same are surrendered to the Indenture Trustee for cancellation.
SECTION 2.13 CUSIP NUMBERS.
The Company in issuing the Debt Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Indenture Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Securityholders; PROVIDED,
HOWEVER, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Indenture Trustee of any change in the
CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01 PAYMENT OF PRINCIPAL AND INTEREST: AGREED TREATMENT OF THE
DEBT SECURITIES.
(a) The Company covenants and agrees that it will duly and punctually
pay or cause to be paid all payments due in respect of the Debt Securities at
the place, at the respective times and in the manner provided in this Indenture
and the Debt Securities, including, without limitation, Liquidated Damages, if
any, on the dates and in the manner required under the Registration Rights
Agreement or the Liquidated Damages Agreement. Payment of the principal of and
premium, if any, and interest and Liquidated Damages, if any, on the Debt
Securities due on the Maturity Date, any Optional Redemption Date or the Special
Redemption Date, as the case may be, will be made by the Company in immediately
available funds against presentation and surrender of such Debt Securities. At
the option of the Company, each installment of
-19-
interest and Liquidated Damages, if any, on the Debt Securities due on an
Interest Payment Date other than the Maturity Date, any Optional Redemption Date
or the Special Redemption Date, as the case may be, may be paid (i) by mailing
checks for such interest payable to the order of the holders of Debt Securities
entitled thereto as they appear on the Debt Security Register or (ii) by wire
transfer of immediately available funds to any account with a banking
institution located in the United States designated by such holders to the
Paying Agent no later than the related record date. Notwithstanding anything to
the contrary contained in this Indenture or any Debt Security, all payments in
respect of the particular Debt Security shall be made by the Company in
immediately available funds when due for any Definitive Security that is held by
the Trust or the Institutional Trustee of the Trust or for any Global Security.
(b) The Company will treat the Debt Securities as indebtedness, and the
interest payable in respect of such Debt Securities as interest, for all U.S.
federal income tax purposes. All payments in respect of such Debt Securities
will be made free and clear of U.S. withholding tax to any beneficial owner
thereof that has provided an Internal Revenue Service Form W-8 BEN (or any
substitute or successor form) establishing its non-U.S. status for U.S. federal
income tax purposes.
(c) As of the date of this Indenture, the Company represents that it
has no intention to exercise its right under Section 2.08 to defer payments of
interest on the Debt Securities by commencing an Extension Period.
(d) As of the date of this Indenture, the Company represents that the
likelihood that it would exercise its right under Section 2.08 to defer payments
of interest on the Debt Securities by commencing an Extension Period at any time
during which the Debt Securities are outstanding is remote because of the
restrictions that would be imposed on the Company's ability to declare or pay
dividends or distributions on, or to redeem, purchase or make a liquidation
payment with respect to, any of its outstanding equity and on the Company's
ability to make any payments of principal of or premium, if any, or interest or
Liquidated Damages, if any, on or, repurchase or redeem, any of its debt
securities that rank PARI PASSU in all respects with or junior in interest to
the Debt Securities.
SECTION 3.02 OFFICES FOR NOTICES AND PAYMENTS, ETC.
So long as any of the Debt Securities remain outstanding, the Company
will maintain in Wilmington, Delaware or in New York, New York an office or
agency where the Debt Securities may be presented for payment, an office or
agency where the Debt Securities may be presented for registration of transfer
and for exchange as provided in this Indenture and an office or agency where
notices and demands to or upon the Company in respect of the Debt Securities or
of this Indenture may be served. The Company will give to the Indenture Trustee
written notice of the location of any such office or agency and of any change of
location thereof. Until otherwise designated from time to time by the Company in
a notice to the Indenture Trustee, or specified as contemplated by Section 2.09,
such office or agency for all of the above purposes shall be the Principal
Office of the Indenture Trustee. In case the Company shall fail to maintain any
such office or agency in Wilmington, Delaware or in New York, New York, or shall
fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Principal Office of the Indenture Trustee.
-20-
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside Wilmington, Delaware or
New York, New York where the Debt Securities may be presented for registration
of transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem
desirable or expedient; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
any such office or agency in Wilmington, Delaware or in New York, New York for
the purposes above mentioned. The Company will give to the Indenture Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.03 APPOINTMENTS TO FILL VACANCIES IN INDENTURE TRUSTEE'S
OFFICE.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Indenture Trustee, will appoint, in the manner provided in Section
6.10, a Indenture Trustee, so that there shall at all times be a Indenture
Trustee hereunder.
SECTION 3.04 PROVISION AS TO PAYING AGENT.
(a) The Company hereby initially appoints the Indenture Trustee to act
as Paying Agent for the Debt Securities (the "Paying Agent"). If the Company
shall appoint a Paying Agent other than the Indenture Trustee with respect to
the Debt Securities, it will cause such Paying Agent to execute and deliver to
the Indenture Trustee an instrument in which such agent shall agree with the
Indenture Trustee, subject to the provisions of this Section 3.04,
(1) that it will hold all sums held by it as such agent for the
payment of all payments due on the Debt Securities (whether
such sums have been paid to it by the Company or by any other
obligor on the Debt Securities) in trust for the benefit of
the holders of the Debt Securities;
(2) that it will give the Indenture Trustee prompt written notice
of any failure by the Company (or by any other obligor on the
Debt Securities) to make any payment on the Debt Securities
when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any Event
of Default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent.
(b) If the Company shall act as its own Paying Agent, it will, on or
before each due date of the payments due on the Debt Securities, set aside,
segregate and hold in trust for the benefit of the holders of the Debt
Securities a sum sufficient to make such payments so becoming due and will
notify the Indenture Trustee in writing of any failure to take such action and
of any failure by the Company (or by any other obligor under the Debt
Securities) to make any payment on the Debt Securities when the same shall
become due and payable.
Whenever the Company shall have one or more Paying Agents for the Debt
Securities, it will, on or prior to each due date of the payments on the Debt
Securities, deposit with a Paying Agent a sum sufficient to pay all payments so
becoming due, such sum to be held in trust for the
-21-
benefit of the Persons entitled thereto and (unless such Paying Agent is the
Indenture Trustee) the Company shall promptly notify the Indenture Trustee in
writing of its action or failure to act.
(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Debt Securities hereunder, or for any other
reason, pay or direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the
Indenture Trustee upon the same terms and conditions herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to
Sections 12.03 and 12.04.
SECTION 3.05 CERTIFICATE TO INDENTURE TRUSTEE.
The Company will deliver to the Indenture Trustee on or before 120 days
after the end of each fiscal year of the Company, commencing with the first
fiscal year ending after the date hereof, so long as Debt Securities are
outstanding hereunder, an Officers' Certificate, stating that in the course of
the performance by the signers of their duties as officers of the Company they
would normally have knowledge of any default by the Company in the performance
of any covenants of the Company contained herein, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof.
SECTION 3.06 ADDITIONAL AMOUNTS.
If and for so long as the Trust is the holder of all Debt Securities
and is subject to or otherwise required to pay (or is required to withhold from
distributions to holders of Trust Securities) any additional taxes (including
withholding taxes), duties, assessments or other governmental charges as a
result of a Tax Event, the Company will pay such additional amounts (the
"Additional Amounts") on the Debt Securities or the Trust Securities, as the
case may be, as shall be required so that the net amounts received and retained
by the holders of Debt Securities or Trust Securities, as the case may be, after
payment of all taxes (including withholding taxes), duties, assessments or other
governmental charges, will be equal to the amounts that such holders would have
received and retained had no such taxes (including withholding taxes), duties,
assessments or other governmental charges been imposed.
Whenever in this Indenture or the Debt Securities there is a reference
in any context to the payment of principal of or premium, if any, or interest
and Liquidated Damages, if any, on the Debt Securities such mention shall be
deemed to include mention of payments of the Additional Amounts provided for in
this Section 3.06 to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section 3.06 and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made, PROVIDED, HOWEVER, that, notwithstanding anything to the contrary
contained in this Indenture or any Debt Security, the deferral of the payment of
interest during an Extension Period pursuant to Section 2.08 shall not defer the
payment of any Additional Amounts that may be due and payable.
-22-
SECTION 3.07 COMPLIANCE WITH CONSOLIDATION PROVISIONS.
The Company will not, while any of the Debt Securities remain
outstanding, consolidate with, or merge into any other Person, or merge into
itself, or sell, convey, transfer or otherwise dispose of all or substantially
all of its property and assets to any other Person unless the provisions of
Article XI hereof are complied with.
SECTION 3.08 LIMITATION ON DIVIDENDS.
If (i) there shall have occurred and be continuing a Default or an
Event of Default, (ii) the Company shall be in default with respect to its
payment of any obligations under the Guarantee or (iii) the Company shall have
given notice of its election to defer payments of interest on the Debt
Securities by extending the interest payment period as provided in Section 2.08
and such period, or any extension thereof, shall have commenced and be
continuing, then the Company may not (A) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock, (B) make any payment of
principal of or premium, if any, or interest or Liquidated Damages, if any, on
or repay, repurchase or redeem any debt securities of the Company that rank PARI
PASSU or junior in interest in all respects with the Debt Securities or (C) make
any payment under any guarantees of the Company that rank PARI PASSU or junior
in interest in all respects with the Guarantee (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company (I)
in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (II) in connection with a dividend reinvestment or
stockholder stock purchase plan or (III) in connection with the issuance of
capital stock of the Company (or securities convertible into or exercisable for
such capital stock) as consideration in an acquisition transaction entered into
prior to the occurrence of (i), (ii) or (iii) above, (b) as a result of any
exchange or conversion of any class or series of the Company's capital stock (or
any capital stock of a Subsidiary of the Company) for any class or series of the
Company's capital stock or of any class or series of the Company's indebtedness
for any class or series of the Company's capital stock, (c) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks PARI PASSU with or junior in interest to such
stock).
SECTION 3.09 COVENANTS AS TO DIME COMMUNITY CAPITAL TRUST I.
For so long as such Trust Securities remain outstanding, the Company
(i) will maintain 100% direct or indirect ownership of the Common Securities of
the Trust; PROVIDED, HOWEVER, that any successor of the Company, permitted
pursuant to Article XI, may succeed to the Company's ownership of such Common
Securities, (ii) will use commercially reasonable efforts to cause the Trust (a)
to remain a statutory trust, except in connection with a distribution of Debt
Securities to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of
-23-
the Trust Securities, or mergers, consolidations or amalgamations, each as
permitted by the Declaration and (b) to otherwise continue to be classified as a
grantor trust for United States federal income tax purposes and (iii) will use
commercially reasonable efforts to cause each holder of the Trust Securities to
be treated as owning an undivided beneficial interest in the Debt Securities.
SECTION 3.10 PAYMENT OF EXPENSES.
In connection with the offering, sale and issuance of the Debt
Securities to the Trust and in connection with the sale of the Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to the Debt
Securities, shall:
(a) pay, or cause to be paid on its behalf, all costs and
expenses relating to the offering, sale and issuance
of the Debt Securities, including fees and expenses
in connection with any Exchange Offer, filing of a
shelf registration statement or other action to be
taken pursuant to the Registration Rights Agreement
and Liquidated Damages Agreement and compensation of
the Indenture Trustee in accordance with the
provisions of Section 6.06;
(b) pay, or cause to be paid on its behalf, all costs and
expenses of the Trust, including, but not limited to,
costs and expenses relating to the organization of
the Trust, the offering, sale and issuance of the
Trust Securities (including commissions payable to
the Initial Purchaser pursuant to the Purchase
Agreement in connection therewith), the fees and
expenses of the Indenture Trustee and the Delaware
Trustee, the costs and expenses relating to the
operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting
equipment, Paying Agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses
incurred in connection with the acquisition,
financing, and disposition of assets of the Trust;
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration,
this Indenture and the Guarantee;
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its
assets) and all liabilities, costs and expenses with
respect to such taxes of the Trust; and
(e) pay all other fees, expenses, debts and obligations
(other than in respect of the Trust Securities)
related to the Trust.
SECTION 3.11 PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this Indenture or the removal or resignation of the
Indenture Trustee, unless otherwise stated, the Company shall pay to the
Indenture Trustee all amounts accrued and
-24-
owing to the Indenture Trustee to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Institutional Trustee under the Declaration, as
the case may be, pursuant to Section 5.7 of the Declaration, the Company shall
pay to the Delaware Trustee or the Institutional Trustee, as the case may be,
all amounts accrued and owing to such trustee(s) to the date of such
termination, removal or resignation.
ARTICLE IV
LIST OF SECURITYHOLDERS AND REPORTS BY THE
COMPANY AND THE INDENTURE TRUSTEE
SECTION 4.01 LIST OF SECURITYHOLDERS.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Indenture Trustee:
(a) on each Regular Record Date for an Interest Payment
Date, a list, in such form as the Indenture Trustee
may reasonably require, of the names and addresses of
the Securityholders of the Debt Securities as of such
record date; and
(b) at such other times as the Indenture Trustee may
request in writing, within 30 days after the receipt
by the Company, of any such request, a list of
similar form and content as of a date not more than
15 days prior to the time such list is furnished,
except that, no such lists need be furnished so long as the Indenture Trustee is
in possession thereof by reason of its acting as Debt Securities registrar.
SECTION 4.02 PRESERVATION AND DISCLOSURE OF LISTS.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of the Debt Securities (i) contained in the most recent list furnished
to it as provided in Section 4.01 or (ii) received by it in the capacity of Debt
Securities registrar (if so acting) hereunder. The Indenture Trustee may destroy
any list furnished to it as provided in Section 4.01 upon receipt of a new list
so furnished.
(b) In case three or more holders of Debt Securities (hereinafter
referred to as "applicants") apply in writing to the Indenture Trustee and
furnish to the Indenture Trustee reasonable proof that each such applicant has
owned a Debt Security for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other holders of Debt Securities or with holders of all Debt
Securities with respect to their rights under this Indenture and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Indenture Trustee shall, within five Business Days
after the receipt of such application, at its election, either:
-25-
(1) afford such applicants access to the information
preserved at the time by the Indenture Trustee in
accordance with the provisions of subsection (a) of
this Section 4.02, or
(2) inform such applicants as to the approximate number
of holders of all Debt Securities whose names and
addresses appear in the information preserved at the
time by the Indenture Trustee in accordance with the
provisions of subsection (a) of this Section 4.02,
and as to the approximate cost of mailing to such
Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Indenture Trustee shall elect not to afford such applicants
access to such information, the Indenture Trustee shall, upon the written
request of such applicants, mail to each Securityholder of Debt Securities whose
name and address appear in the information preserved at the time by the
Indenture Trustee in accordance with the provisions of subsection (a) of this
Section 4.02 a copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a tender to the
Indenture Trustee of the material to be mailed and of payment, or provision for
the payment, of the reasonable expenses of mailing, unless within five Business
Days after such tender, the Indenture Trustee shall mail to such applicants and
file with the Commission, if permitted or required by applicable law, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Indenture Trustee, such mailing would be contrary to
the best interests of the holders of all Debt Securities or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission as permitted or required by applicable law,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Indenture Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Indenture Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Debt Securities, by receiving and holding
the same, agrees with the Company and the Indenture Trustee that none of the
Company, the Indenture Trustee or any Paying Agent shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the holders of Debt Securities in accordance with the provisions of
subsection (b) of this Section 4.02, regardless of the source from which such
information was derived, and that the Indenture Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 4.03 REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the Indenture
Trustee, within 15 days after the date on which the Company is required to file
the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as said Commission may from time to time by rules and
-26-
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act or, if
the Company is not required to file information, documents or reports pursuant
to either of such sections, then to provide to the Indenture Trustee, such of
the supplementary and periodic information, documents and reports which would
have been required pursuant to Section 13 of the Exchange Act in respect of a
debt security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations. The Company also
covenants and agrees to comply with the provisions of Section 314(a) of the
Trust Indenture Act.
(b) The Company covenants and agrees to file with the Indenture Trustee
and the Commission, in accordance with the rules and regulations prescribed from
time to time by said Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all holders
of Debt Securities, as the names and addresses of such holders appear upon the
Debt Security Register, within 30 days after the filing thereof with the
Indenture Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of this
Section 4.03 as may be required by rules and regulations prescribed from time to
time by the Commission.
(d) Delivery of such reports, information and documents to the
Indenture Trustee is for informational purposes only and the Indenture Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Indenture Trustee is entitled to rely exclusively on Officers' Certificates).
(e) So long as is required for an offer or sale of the Debt Securities
to qualify for an exemption under Rule 144A under the Securities Act, the
Company shall, upon request, provide the information required by clause (d)(4)
thereunder to each Securityholder and to each beneficial owner and prospective
purchaser of Debt Securities identified by each Securityholder of Restricted
Securities, unless such information is furnished to the Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
SECTION 4.04 REPORTS BY THE INDENTURE TRUSTEE.
(a) The Indenture Trustee shall transmit to Securityholders such
reports concerning the Indenture Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Indenture Trustee shall, within 60 days after the date
hereof, and no later than the anniversary date hereof in each succeeding year,
deliver to Securityholders a brief report, dated as of each such date, which
complies with the provisions of such Section 313(a).
(b) A copy of each report transmitted to Securityholders shall, at the
time of such transmission, be filed by the Indenture Trustee with each stock
exchange, if any, upon which the
-27-
Debt Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Indenture Trustee when the Debt Securities are
listed on any stock exchange.
ARTICLE V
REMEDIES OF THE INDENTURE TRUSTEE AND
SECURITYHOLDERS UPON EVENT OF DEFAULT
SECTION 5.01 EVENTS OF DEFAULT.
The following events shall be "Events of Default" with respect to the
Debt Securities:
(a) the Company defaults in the payment of any interest or Liquidated
Damages, if any, on any Debt Security when it becomes due and payable, and
continuance of such default for a period of 30 days; for the avoidance of doubt,
an extension of any interest payment period by the Company in accordance with
Section 2.08 of this Indenture shall not constitute a default under this clause
5.01(a); or
(b) the Company defaults in the payment of all or any part of the
principal of (or premium, if any, on) any Debt Securities as and when the same
shall become due and payable, whether at maturity, upon redemption, by
acceleration of maturity pursuant to this Section 5.01 or otherwise; or
(c) the Company defaults in the performance of, or breaches, any of its
covenants or agreements in Sections 3.06, 3.07, 3.08 or 3.09 of this Indenture
(other than a covenant or agreement a default in whose performance or whose
breach is elsewhere in this Section 5.01 specifically dealt with), and
continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Indenture
Trustee or to the Company and the Indenture Trustee by the holders of not less
than 25% in aggregate principal amount of the outstanding Debt Securities, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appoints a receiver, liquidator, assignee, Custodian, trustee,
sequestrator or other similar official of the Company or for any substantial
part of its property, or orders the winding-up or liquidation of its affairs and
such decree, appointment or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, Custodian, sequestrator or other
similar official of the Company or of any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
-28-
(f) the Trust shall have voluntarily or involuntarily liquidated,
dissolved, wound-up its business or otherwise terminated its existence except in
connection with (1) the distribution of the Debt Securities to holders of the
Trust Securities in liquidation of their interests in the Trust, (2) the
redemption of all of the outstanding Trust Securities or (3) mergers,
consolidations or amalgamations, each as permitted by the Declaration.
If an Event of Default specified under clause (a), (b) or (c) of this
Section 5.01 occurs and is continuing with respect to the Debt Securities, then,
in each and every such case, either the Indenture Trustee or the holders of not
less than 25% in aggregate principal amount of the Debt Securities then
outstanding hereunder, by notice in writing to the Company (and to the Indenture
Trustee if given by Securityholders), may declare the entire principal amount of
the Debt Securities and any premium and interest accrued, but unpaid, thereon to
be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable. If an Event of Default specified under
clause (d), (e) or (f) of this Section 5.01 occurs, then, in each and every such
case, the entire principal amount of the Debt Securities and any premium and
interest accrued, but unpaid, thereon shall IPSO FACTO become immediately due
and payable without further action.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Debt Securities shall have become due
by acceleration and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, (i) the Company
shall pay or shall deposit with the Indenture Trustee a sum sufficient to pay
all matured installments of interest upon all the Debt Securities and all
payments on the Debt Securities which shall have become due otherwise than by
acceleration (with interest upon all such payments and Deferred Interest, to the
extent permitted by law) and such amount as shall be sufficient to cover
reasonable compensation to the Indenture Trustee and each predecessor Indenture
Trustee, their respective agents, attorneys and counsel, and all other amounts
due to the Indenture Trustee pursuant to Section 6.06, if any, and (ii) all
Events of Default under this Indenture, other than the non-payment of the
payments in respect of Debt Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then, in each and every such case, the holders of a majority in
aggregate principal amount of the Debt Securities then outstanding, by written
notice to the Company and to the Indenture Trustee, may waive all defaults and
rescind and annul such acceleration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon; PROVIDED, HOWEVER, that if the
Debt Securities are held by the Trust or a trustee of the Trust, such waiver or
rescission and annulment shall not be effective until the holders of a majority
in aggregate Liquidation Amount of the outstanding Capital Securities of the
Trust shall have consented to such waiver or rescission and annulment.
In case the Indenture Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Indenture Trustee, then and in every
such case the Company, the Indenture Trustee and the holders of the Debt
Securities shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company, the Indenture
Trustee and the holders of the Debt Securities shall continue as though no such
proceeding had been taken.
-29-
SECTION 5.02 PAYMENT OF DEBT SECURITIES ON DEFAULT; SUIT THEREFOR.
The Company covenants that upon the occurrence of an Event of Default
pursuant to clause (a) or (b) of Section 5.01 and upon demand of the Indenture
Trustee, the Company will pay to the Indenture Trustee, for the benefit of the
holders of the Debt Securities, the whole amount that then shall have become due
and payable on all Debt Securities, including Deferred Interest accrued on the
Debt Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Indenture Trustee, its agents, attorneys and counsel, and
any other amounts due to the Indenture Trustee under Section 6.06. In case the
Company shall fail forthwith to pay such amounts upon such demand, the Indenture
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any actions or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor on such Debt Securities
and collect in the manner provided by law out of the property of the Company or
any other obligor on such Debt Securities wherever situated the moneys adjudged
or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debt Securities
under Bankruptcy Law, or in case a receiver or trustee shall have been appointed
for the property of the Company or such other obligor, or in the case of any
other similar judicial proceedings relative to the Company or other obligor upon
the Debt Securities, or to the creditors or property of the Company or such
other obligor, the Indenture Trustee, irrespective of whether the principal of
the Debt Securities shall then be due and payable as therein expressed or by
acceleration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section 5.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
and interest owing and unpaid in respect of the Debt Securities and, in case of
any judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all other amounts due to
the Indenture Trustee under Section 6.06) and of the Securityholders allowed in
such judicial proceedings relative to the Company or any other obligor on the
Debt Securities, or to the creditors or property of the Company or such other
obligor, unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Debt Securities in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or Person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the Securityholders to make
such payments to the Indenture Trustee, and, in the event that the Indenture
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other amounts due to the Indenture Trustee under Section 6.06.
-30-
Nothing herein contained shall be construed to authorize the Indenture
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debt Securities or the rights of any holder thereof or
to authorize the Indenture Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities, may be enforced by the Indenture Trustee
without the possession of any of the Debt Securities, or the production thereof
at any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Indenture Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall be for the
ratable benefit of the holders of the Debt Securities.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the holders of the Debt Securities, and it shall not be
necessary to make any holders of the Debt Securities parties to any such
proceedings.
SECTION 5.03 APPLICATION OF MONEYS COLLECTED BY INDENTURE TRUSTEE.
Any moneys collected by the Indenture Trustee shall be applied in the
following order, at the date or dates fixed by the Indenture Trustee for the
distribution of such moneys, upon presentation of the Debt Securities in respect
of which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses incurred by, and reasonable
fees of the Indenture Trustee and its agents and attorneys and all other amounts
due to the Indenture Trustee under Section 6.06;
Second: To the payment of all Senior Debt of the Company if and to the
extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon the Debt
Securities in respect of which or for the benefit of which money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due on such Debt Securities for principal, premium, if any, interest and
Liquidated Damages, if any, respectively; and
Fourth: To the Company.
SECTION 5.04 PROCEEDINGS BY SECURITYHOLDERS.
(a) Except as provided in Section 5.04(c) below, no holder of any Debt
Security shall have any right by virtue of or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless (i) such holder
previously shall have given to the Indenture Trustee written notice of the
occurrence and continuance of an Event of Default with respect to the Debt
Securities specifying such Event of
-31-
Default, and (ii) the holders of not less than 25% in aggregate principal amount
of the Debt Securities then outstanding shall have made written request upon the
Indenture Trustee to institute such action, suit or proceeding in its own name
as Indenture Trustee hereunder and shall have offered to the Indenture Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Indenture Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding, it being understood and
intended, and being expressly covenanted by the holder of every Debt Security
with every other holder and the Indenture Trustee, that no holder of Debt
Securities shall have any right in any manner whatsoever by virtue of or by
availing itself of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of Debt Securities, or to obtain or
seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all holders of Debt Securities.
(b) Notwithstanding any other provisions in this Indenture, however,
the right of any holder of any Debt Security to receive payment of the principal
of and premium, if any, and interest and Liquidated Damages, if any, on such
Debt Security, when due or to institute suit for the enforcement of any such
payment, shall not be impaired or affected without the consent of such holder.
For the protection and enforcement of the provisions of this Section 5.04, each
and every Securityholder and the Indenture Trustee shall be entitled to such
relief as can be given either at law or in equity.
(c) The Company acknowledges that, with respect to any Debt Securities
held by the Trust or a trustee of such Trust, if the trustee of such Trust fails
to enforce its rights under this Indenture as the holder of the Debt Securities
held as the assets of the Trust, any holder of Capital Securities may institute
legal proceedings, subject to Section 5.08, directly against the Company to
enforce such trustee's rights under this Indenture without first instituting any
legal proceedings against such trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
principal of or premium, if any, or interest or Liquidated Damages, if any, on
the Debt Securities when due, the Company acknowledges that each holder of
Capital Securities may directly institute a proceeding for enforcement of
payment to such holder of the principal of and premium, if any, or interest or
Liquidated Damages, if any, on the Debt Securities having an aggregate principal
amount equal to the aggregate Liquidation Amount of the Capital Securities of
such holder on or after the respective due date specified in the Debt
Securities; it being understood that references to due dates shall include an
Optional Redemption Date or the Special Redemption Date, as the case may be.
SECTION 5.05 PROCEEDINGS BY INDENTURE TRUSTEE.
In case an Event of Default occurs with respect to Debt Securities and
is continuing, the Indenture Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this
-32-
Indenture, or to enforce any other legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
SECTION 5.06 REMEDIES CUMULATIVE AND CONTINUING.
Except as otherwise provided in Section 2.10, all powers and remedies
given by this Article V to the Indenture Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of
any other powers and remedies available to the Indenture Trustee or the holders
of the Debt Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to the Debt Securities, and no
delay or omission of the Indenture Trustee or of any holder of any of the Debt
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 5.04, every power and remedy
given by this Article V or by law to the Indenture Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Indenture Trustee or by the Securityholders.
SECTION 5.07 RESTORATION OF RIGHTS AND REMEDIES.
If the Indenture Trustee or any holder of the Debt Securities has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Indenture Trustee or to such holder of the Debt
Securities, then and in every such case the Company, the Indenture Trustee and
the holder of the Debt Securities shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee and
the holders of the Debt Securities shall continue as though no such proceeding
had been instituted.
SECTION 5.08 DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY
MAJORITY OF SECURITYHOLDERS.
The holders of a majority in aggregate principal amount of the Debt
Securities affected at the time outstanding and, if the Debt Securities are held
by the Trust or a trustee of the Trust, the holders of a majority in aggregate
Liquidation Amount of the outstanding Capital Securities of the Trust shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee with respect to such Debt Securities;
PROVIDED, HOWEVER, that if the Debt Securities are held by the Trust or a
trustee of the Trust, such time, method and place or such exercise, as the case
may be, may not be so directed until the holders of a majority in aggregate
Liquidation Amount of the outstanding Capital Securities of the Trust shall have
directed such time, method and place or such exercise, as the case may be;
PROVIDED, FURTHER, that (subject to the provisions of Section 6.01) the
Indenture Trustee shall have the right to decline to follow any such direction
if the Indenture Trustee in good faith shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Indenture Trustee being advised by counsel determines that
the action or proceeding so directed may not
-33-
lawfully be taken or if a Responsible Officer of the Indenture Trustee shall
determine that the action or proceedings so directed would involve the Indenture
Trustee in personal liability. Prior to any declaration of acceleration, or IPSO
FACTO acceleration, of the maturity of the Debt Securities, the holders of a
majority in aggregate principal amount of the Debt Securities at the time
outstanding may on behalf of the holders of all of the Debt Securities waive (or
modify any previously granted waiver of) any past Default or Event of Default
and its consequences, except a default:
(a) in the payment of principal of or premium, if any, or interest or
Liquidated Damages, if any, on any of the Debt Securities (unless such default
has been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with the
Indenture Trustee),
(b) in respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the holder of each Debt Security
affected, or
(c) in respect of the covenants contained in Section 3.09;
PROVIDED, HOWEVER, that if the Debt Securities are held by the Trust or a
trustee of the Trust, such waiver or modification to such waiver shall not be
effective until the holders of a majority in aggregate Liquidation Amount of the
outstanding Capital Securities of the Trust shall have consented to such waiver
or modification to such waiver; PROVIDED, FURTHER, that if the consent of the
holder of each outstanding Debt Security is required, such waiver or
modification to such waiver shall not be effective until each holder of the
outstanding Capital Securities of the Trust shall have consented to such waiver
or modification to such waiver. Upon any such waiver or modification to such
waiver, the Default or Event of Default covered thereby shall be deemed to be
cured for all purposes of this Indenture and the Company, the Indenture Trustee
and the holders of the Debt Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver or modification
to such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon. Whenever any Default or Event of
Default hereunder shall have been waived as permitted by this Section 5.08, said
Default or Event of Default shall for all purposes of the Debt Securities and
this Indenture be deemed to have been cured and to be not continuing.
SECTION 5.09 NOTICE OF DEFAULTS.
(a) The Indenture Trustee shall, within 90 days after the occurrence of
a Default with respect to the Debt Securities actually known to a Responsible
Officer of the Indenture Trustee, mail to all Securityholders, as the names and
addresses of such holders appear upon the Debt Security Register, notice of all
such Defaults, unless such Default shall have been cured before the giving of
such notice (the term "Default" for the purpose of this Section 5.09 being
hereby defined to be any of the events specified in clauses (a), (b), (c), (d),
(e) and (f) of Section 5.01, not including periods of grace, if any, provided
for therein, and irrespective of the giving of written notice specified in
clause (c) of Section 5.01); PROVIDED, HOWEVER, that, except in the case of
Default in the payment of the principal of or premium, if any, or interest or
Liquidated Damages, if any, on any of the Debt Securities, the Indenture Trustee
shall be protected in
-34-
withholding such notice if and so long as a Responsible Officer of the Indenture
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders.
(b) Within ten Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall transmit notice of such Event of Default to all
Securityholders as their names and addresses appear on the Debt Security
Register, unless such Event of Default shall have been cured or waived.
SECTION 5.10 UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each holder of any Debt
Security by its acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Indenture
Trustee for any action taken or omitted by it as Indenture Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and, that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.10
shall not apply to any suit instituted by the Indenture Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in aggregate principal amount of the Debt Securities
outstanding, or if such Debt Securities are held by the Trust or a trustee of
the Trust, more than 10% in Liquidation Amount of the outstanding Capital
Securities, or to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of or premium, if any, or interest or Liquidated
Damages, if any, on any Debt Security against the Company on or after the same
shall have become due and payable or to any suit instituted in accordance with
Section 5.04(c).
ARTICLE VI
CONCERNING THE INDENTURE TRUSTEE
SECTION 6.01 DUTIES AND RESPONSIBILITIES OF INDENTURE TRUSTEE.
With respect to the holders of the Debt Securities issued hereunder,
the Indenture Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has not
been cured or waived), the Indenture Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct or bad faith, except that:
(a) prior to the occurrence of an Event of Default and
after the curing or waiving of such Events of Default
which may have occurred,
-35-
(1) the duties and obligations of the Indenture Trustee
shall be determined solely by the express provisions
of this Indenture, and the Indenture Trustee shall
not be liable except for the performance of such
duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against
the Indenture Trustee; and
(2) in the absence of bad faith on the part of the
Indenture Trustee, the Indenture Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificate or opinion furnished to
the Indenture Trustee and conforming to the
requirements of this Indenture; but, in the case of
any such certificate or opinion which by any
provision hereof is specifically required to be
furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to
determine only whether or not it conforms on its face
to the requirements of this Indenture;
(b) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer or Responsible Officers, unless it shall be
proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts;
(c) the Indenture Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of
the Securityholders pursuant to Section 5.08,
relating to the time, method and place of conducting
any proceeding for any remedy available to the
Indenture Trustee, or exercising any trust or power
conferred upon the Indenture Trustee, under this
Indenture; and
(d) the Indenture Trustee shall not be charged with
knowledge of any Default or Event of Default with
respect to the Debt Securities unless either (1) a
Responsible Officer shall have actual knowledge of
such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have
been given to the Indenture Trustee by the Company or
any other obligor on the Debt Securities or by any
holder of the Debt Securities, except that the
Indenture Trustee shall be deemed to have knowledge
of any Event of Default pursuant to Sections 5.01(a)
or 5.01(b) hereof (other than an Event of Default
resulting from the default in the payment of
Additional Amounts or Liquidated Damages if the
Indenture Trustee does not have actual knowledge or
written notice that such payment is due and payable)
.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers.
-36-
SECTION 6.02 RELIANCE ON DOCUMENTS, OPINIONS, ETC.
Except as otherwise provided in Section 6.01:
(a) the Indenture Trustee may conclusively rely and shall
be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
bond, note, debenture or other paper or document
believed by it in good faith to be genuine and to
have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be
evidenced to the Indenture Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary
of the Company;
(c) the Indenture Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel shall
be full and complete authorization and protection in
respect of any action taken or suffered or omitted by
it hereunder in good faith and in accordance with
such advice or Opinion of Counsel; and the Indenture
Trustee shall have the right at any time to seek
instructions concerning the administration of this
Indenture from any court of competent jurisdiction.
(d) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the
provisions of this Indenture, unless such
Securityholders shall have offered to the Indenture
Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the Indenture Trustee shall not be liable for any
action taken or omitted by it in good faith and
believed by it to be authorized or within the
discretion or rights or powers conferred upon it by
this Indenture; nothing contained herein shall,
however, relieve the Indenture Trustee of the
obligation, upon the occurrence of an Event of
Default (that has not been cured or waived), to
exercise with respect to the Debt Securities such of
the rights and powers vested in it by this Indenture,
and to use the same degree of care and skill in its
exercise as a prudent person would exercise or use
under the circumstances in the conduct of such
person's own affairs;
(f) the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
approval, bond, debenture, coupon or other paper or
document, unless requested in writing to do so by
-37-
the holders of a majority in aggregate principal
amount of the outstanding Debt Securities affected
thereby; PROVIDED, HOWEVER, that if the payment
within a reasonable time to the Indenture Trustee of
the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation
is, in the opinion of the Indenture Trustee, not
reasonably assured to the Indenture Trustee by the
security afforded to it by the terms of this
Indenture, the Indenture Trustee may require
reasonable indemnity against such expense or
liability as a condition to so proceeding; and
(g) the Indenture Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the
Indenture Trustee shall not be responsible for any
misconduct or negligence on the part of any such
agent or attorney appointed by it with due care.
SECTION 6.03 NO RESPONSIBILITY FOR RECITALS, ETC.
The recitals contained herein and in the Debt Securities (except in the
certificate of authentication of the Indenture Trustee or the Authenticating
Agent) shall be taken as the statements of the Company, and the Indenture
Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same. The Indenture Trustee and the Authenticating Agent make
no representations as to the validity or sufficiency of this Indenture or of the
Debt Securities. The Indenture Trustee and the Authenticating Agent shall not be
accountable for the use or application by the Company of any Debt Securities or
the proceeds of any Debt Securities authenticated and delivered by the Indenture
Trustee or the Authenticating Agent in conformity with the provisions of this
Indenture.
SECTION 6.04 INDENTURE TRUSTEE, AUTHENTICATING AGENT, PAYING AGENTS,
TRANSFER AGENTS AND REGISTRAR MAY OWN DEBT SECURITIES.
The Indenture Trustee or any Authenticating Agent or any Paying Agent
or any transfer agent or any security registrar for the Debt Securities, in its
individual or any other capacity, may become the owner or pledgee of Debt
Securities with the same rights it would have if it were not Indenture Trustee,
Authenticating Agent, Paying Agent, transfer agent or security registrar for the
Debt Securities.
SECTION 6.05 MONEYS TO BE HELD IN TRUST.
Subject to the provisions of Section 12.04, all moneys received by the
Indenture Trustee or any Paying Agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Indenture Trustee and any Paying Agent shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in
writing with the Company. So long as no Event of Default shall have occurred and
be continuing, all interest allowed on any such moneys, if any, shall be paid
from time to time to the Company upon a Company Order.
-38-
SECTION 6.06 COMPENSATION AND EXPENSES OF INDENTURE TRUSTEE.
The Company, as issuer of Debt Securities under this Indenture,
covenants and agrees to pay to the Indenture Trustee from time to time, and the
Indenture Trustee shall be entitled to, such compensation as shall be agreed to
in writing between the Company and the Indenture Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Company will pay or reimburse the Indenture Trustee upon
its written request for all documented reasonable expenses, disbursements and
advances incurred or made by the Indenture Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and of all persons not
regularly in its employ), except any such expense, disbursement or advance that
arises from its negligence, willful misconduct, or bad faith. The Company also
covenants to indemnify each of the Indenture Trustee (including in its
individual capacity) and any predecessor Indenture Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and
all loss, damage, claim, action, suit, liability or expense including taxes
(other than taxes based on the income of the Indenture Trustee), arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim or liability,
except to the extent such loss, damage, claim, liability or expense results from
the negligence, willful misconduct, or bad faith of such indemnitee. The
obligations of the Company under this Section 6.06 to compensate and indemnify
the Indenture Trustee and to pay or reimburse the Indenture Trustee for
documented expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien
prior to that of the Debt Securities upon all property and funds held or
collected by the Indenture Trustee as such, except funds held in trust for the
benefit of the holders of particular Debt Securities.
Without prejudice to any other rights available to the Indenture
Trustee under applicable law, when the Indenture Trustee incurs expenses or
renders services in connection with an Event of Default as specified in clause
(d), (e) or (f) of Section 5.01, the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for its services are intended
to constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section 6.06 shall survive the resignation or
removal of the Indenture Trustee and the defeasance or other termination of this
Indenture.
Notwithstanding anything in this Indenture or any Debt Security to the
contrary, the Indenture Trustee shall have no obligation whatsoever to advance
funds to pay any principal of or premium, if any, or interest or Liquidated
Damages, if any, on or other amounts with respect to the Debt Securities or
otherwise advance funds to or on behalf of the Company.
SECTION 6.07 OFFICERS' CERTIFICATE AS EVIDENCE.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in the
administration of the provisions of this Indenture the Indenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or omitting any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, in the absence of
-39-
negligence, willful misconduct or bad faith on the part of the Indenture
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Indenture Trustee, and such Officers' Certificate,
in the absence of negligence, willful misconduct or bad faith on the part of the
Indenture Trustee, shall be full authorization to the Indenture Trustee for any
action taken or omitted by it under the provisions of this Indenture in reliance
theron.
SECTION 6.08 CONFLICTING INTEREST OF INDENTURE TRUSTEE.
If the Indenture Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Indenture Trustee and the Company shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 6.09 ELIGIBILITY OF INDENTURE TRUSTEE.
The Indenture Trustee hereunder shall at all times be a U.S. Person
that is a banking corporation or national association organized and doing
business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia, or other Person permitted to
act as trustee by the Commission authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least fifty
million U.S. dollars ($50,000,000) and subject to supervision or examination by
federal, state, territorial, or District of Columbia authority. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 6.09 the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Indenture Trustee.
In case at any time the Indenture Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Indenture Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10 RESIGNATION OR REMOVAL OF INDENTURE TRUSTEE.
(a) The Indenture Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice of such resignation
to the Company and by mailing notice thereof, at the Company's expense, to the
holders of the Debt Securities at their addresses as they shall appear on the
Debt Security Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee or trustees, in accordance with the
provisions of Section 6.09, by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Indenture Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 60 days after the mailing of such
notice of resignation to the affected Securityholders, the resigning Indenture
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide holder of a
Debt Security for at least six months may, subject to the provisions of Section
5.10, on behalf of such Securityholder and all others similarly situated,
petition any such court for the appointment of a
-40-
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Indenture Trustee shall fail to comply with the
provisions of Section 6.09 after written request
therefor by the Company or by any Securityholder who
has been a bona fide holder of a Debt Security or
Debt Securities for at least six months, or
(2) the Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 6.09 and
shall fail to resign after written request therefor
by the Company or by any Securityholder who has been
a bona fide holder of a Debt Security or Debt
Securities for at least six months, or
(3) the Indenture Trustee shall become incapable of
acting, or shall be adjudged bankrupt or insolvent,
or a receiver of the Indenture Trustee or of its
property shall be appointed, or any public officer
shall take charge or control of the Indenture Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Indenture Trustee and appoint
a successor trustee, in accordance with the provisions of Section 6.09, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Indenture Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 5.10, if no successor trustee
shall have been so appointed and have accepted appointment within 60 days of the
occurrence of (1), (2) or (3) above, any Securityholder who has been a bona fide
holder of a Debt Security for at least six months may, on behalf of such
Securityholder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Indenture Trustee and the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Indenture Trustee and
appoint a successor trustee.
(c) Upon prior written notice to the Company and the Indenture Trustee,
the holders of a majority in aggregate principal amount of the Debt Securities
at the time outstanding may at any time remove the Indenture Trustee and
nominate a successor trustee, which shall be deemed appointed as successor
trustee unless within ten Business Days after written notification of such
nomination the Company objects thereto. If no successor trustee shall have been
so appointed and shall have accepted appointment within 60 days after such
removal, the Indenture Trustee so removed or any Securityholder, upon the terms
and conditions and otherwise as in subsection (a) of this Section 6.10, may
petition any court of competent jurisdiction for an appointment of a successor
trustee.
(d) Any resignation or removal of the Indenture Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 6.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 6.11.
-41-
SECTION 6.11 ACCEPTANCE BY SUCCESSOR INDENTURE TRUSTEE; SUPPLEMENTAL
INDENTURE.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an indenture supplemental hereto which shall contain such provisions as shall be
deemed necessary or desirable to confirm that all of the rights, powers, trusts
and duties of the retiring trustee shall be vested in the successor trustee, and
thereupon the resignation or removal of the retiring trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein; PROVIDED, HOWEVER, that, on the written request of the
Company or of the successor trustee, the trustee ceasing to act shall, upon
payment of all amounts then due it pursuant to the provisions of Section 6.06,
execute and deliver an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act and shall duly assign,
transfer and deliver to such successor trustee all property and money held by
such retiring trustee thereunder. Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
In no event shall a retiring trustee be liable for the acts or
omissions of any successor trustee hereunder.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Company shall mail notice of the succession of such
trustee hereunder to the holders of Debt Securities at their addresses as they
shall appear on the Debt Security Register. If the Company fails to mail such
notice within 10 days after the acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Company.
SECTION 6.12 SUCCESSION BY MERGER, ETC.
Any Person into which the Indenture Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Indenture Trustee shall be a party, or
any Person succeeding to all or substantially all of the corporate trust
business of the Indenture Trustee, shall be the successor of the Indenture
Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, PROVIDED, THAT such corporation
shall be otherwise eligible and qualified under this Article VI.
In case any Debt Securities shall have been authenticated but not
delivered at the time such successor to the Indenture Trustee shall succeed to
the trusts created by this Indenture, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any
-42-
predecessor trustee, and deliver such Debt Securities so authenticated; and in
case at that time any of the Debt Securities shall not have been authenticated,
any successor to the Indenture Trustee may authenticate such Debt Securities
either in the name of any predecessor hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the full force which
the Debt Securities or this Indenture elsewhere provides that the certificate of
the Indenture Trustee shall have; PROVIDED, HOWEVER, that the right to adopt the
certificate of authentication of any predecessor Indenture Trustee or
authenticate Debt Securities in the name of any predecessor Indenture Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.13 LIMITATION ON RIGHTS OF INDENTURE TRUSTEE AS A CREDITOR.
The Indenture Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. An Indenture Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.
SECTION 6.14 AUTHENTICATING AGENTS.
There may be one or more Authenticating Agents appointed by the
Indenture Trustee upon the request of the Company with power to act on the
Indenture Trustee's behalf and subject to the Indenture Trustee's direction in
the authentication and delivery of Debt Securities issued upon exchange or
transfer thereof as fully to all intents and purposes as though any such
Authenticating Agent had been expressly authorized to authenticate and deliver
Debt Securities; PROVIDED, HOWEVER, that the Indenture Trustee shall have no
liability to the Company for any acts or omissions of the Authenticating Agent
with respect to the authentication and delivery of Debt Securities. Any such
Authenticating Agent shall at all times be a Person organized and doing business
under the laws of the United States or of any state or territory thereof or of
the District of Columbia authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of at least $50,000,000 and being
subject to supervision or examination by federal, state, territorial or District
of Columbia authority. If such Person publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.14 the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.14, it shall resign immediately in the manner and with the effect herein
specified in this Section 6.14.
Any Person into which any Authenticating Agent may be merged, converted
or with which it may be consolidated, or any Person resulting from any merger or
conversion or consolidation to which any Authenticating Agent shall be a party,
or any Person succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of such Authenticating Agent hereunder, if such
successor Person is otherwise eligible under this Section 6.14 without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authenticating Agent.
-43-
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and to the Company. The Indenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible under
this Section 6.14, the Indenture Trustee may, and upon the request of the
Company shall, promptly appoint a successor Authenticating Agent eligible under
this Section 6.14, shall give written notice of such appointment to the Company
and shall mail notice of such appointment to all Securityholders as the names
and addresses of such holders appear on the Debt Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein.
The Company, as issuer of the Debt Securities, agrees to pay to any
Authenticating Agent from time to time reasonable compensation for its services.
Any Authenticating Agent shall have no responsibility or liability for any
action taken by it as such in accordance with the directions of the Indenture
Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01 ACTION BY SECURITYHOLDERS.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Debt Securities or
aggregate Liquidation Amount of the Capital Securities may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument (including by way of electronic
transmission) or any number of instruments of similar tenor executed by such
Securityholders or holders of Capital Securities, as the case may be, in person
or by agent or proxy appointed in writing, or (b) by the record of such holders
of Debt Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article VIII or of such holders of Capital Securities duly called and held in
accordance with the provisions of the Declaration, or (c) by a combination of
such instrument or instruments and any such record of such a meeting of such
Securityholders or holders of Capital Securities, as the case may be, or (d) by
any other method the Indenture Trustee deems satisfactory.
If the Company shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action or
revocation of the same, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such Debt Securities for
the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, but the Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same may be given before or after
the record date, but only the Securityholders of record at the close of business
on the record date shall be deemed to be Securityholders for the purposes of
-44-
determining whether Securityholders of the requisite proportion of outstanding
Debt Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, and for that purpose the outstanding Debt Securities shall be
computed as of the record date; PROVIDED, HOWEVER, that no such authorization,
agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 7.02 PROOF OF EXECUTION BY SECURITYHOLDERS.
Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Indenture Trustee or in such manner as shall be
satisfactory to the Indenture Trustee. The ownership of Debt Securities shall be
proved by the Debt Security Register or by a certificate of the security
registrar for the Debt Securities. The Indenture Trustee may require such
additional proof of any matter referred to in this Section 7.02 as it shall deem
necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03 WHO ARE DEEMED ABSOLUTE OWNERS.
Prior to due presentment for registration of transfer of any Debt
Security, the Company, the Indenture Trustee, any Authenticating Agent, any
Paying Agent, any transfer agent and any security registrar for the Debt
Securities may deem the person in whose name such Debt Security shall be
registered upon the Debt Security Register to be, and may treat such Person as,
the absolute owner of such Debt Security (whether or not such Debt Security
shall be overdue) for the purpose of receiving payment of or on account of the
principal of and premium, if any, and interest and Liquidated Damages, if any,
on such Debt Security and for all other purposes; and none of the Company, the
Indenture Trustee, any Authenticating Agent, any Paying Agent, any transfer
agent or any security registrar for the Debt Securities shall be affected by any
notice to the contrary. All such payments so made to any holder for the time
being or upon such holder's order shall be valid and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Debt Security.
SECTION 7.04 DEBT SECURITIES OWNED BY COMPANY DEEMED NOT OUTSTANDING.
In determining whether the holders of the requisite aggregate principal
amount of Debt Securities have concurred in any direction, consent or waiver
under this Indenture, Debt Securities that are owned by the Company or any other
obligor on the Debt Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company (other than the Trust) or any other obligor on the Debt Securities shall
be disregarded and deemed not to be outstanding for the purpose of any such
determination; PROVIDED, HOWEVER, that for the purposes of determining whether
the Indenture Trustee shall be protected in relying on any such direction,
consent or waiver, only Debt Securities which a Responsible Officer of the
Indenture Trustee actually knows are so owned shall be so
-45-
disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as outstanding for the purposes of this Section 7.04 if the pledgee
shall establish to the satisfaction of the Indenture Trustee the pledgee's right
to vote such Debt Securities and that the pledgee is not the Company or any such
other obligor or Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, any decision by the
Indenture Trustee taken upon the advice of counsel shall be full protection to
the Indenture Trustee.
SECTION 7.05 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Indenture
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Debt Securities specified
in this Indenture in connection with such action, any holder (in cases where no
record date has been set pursuant to Section 7.01) or any holder as of an
applicable record date (in cases where a record date has been set pursuant to
Section 7.01) of a Debt Security (or any Debt Security issued in whole or in
part in exchange or substitution therefor), subject to Section 7.01, the serial
number of which is shown by the evidence to be included in the group of Debt
Securities the holders of which have consented to such action, may, by filing
written notice with the Indenture Trustee at the Principal Office of the
Indenture Trustee and upon proof of holding as provided in Section 7.02, revoke
such action so far as concerns such Debt Security (or so far as concerns the
principal amount represented by any exchanged or substituted Debt Security).
Except as aforesaid, any such action taken by the holder of any Debt Security
shall be conclusive and binding upon such holder and upon all future holders and
owners of such Debt Security, and of any Debt Security issued in exchange or
substitution therefor, or on registration or transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security or
any Debt Security issued in exchange or substitution therefor.
ARTICLE VIII
MEETINGS OF SECURITYHOLDERS
SECTION 8.01 PURPOSES OF MEETINGS.
A meeting of Securityholders may be called at any time and from time to
time pursuant to the provisions of this Article VIII for any of the following
purposes:
(a) to give any notice to the Company or to the Indenture Trustee, or
to give any directions to the Indenture Trustee, or to consent to the waiving of
any Default hereunder and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to any of the provisions of
Article V;
(b) to remove the Indenture Trustee and nominate a successor trustee
pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
-46-
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of such Debt Securities
under any other provision of this Indenture or under applicable law.
SECTION 8.02 CALL OF MEETINGS BY INDENTURE TRUSTEE.
The Indenture Trustee may at any time call a meeting of Securityholders
to take any action specified in Section 8.01, to be held at such time and at
such place in the City of New York, the Borough of Manhattan, or Wilmington,
Delaware as the Indenture Trustee shall determine. Notice of every meeting of
the Securityholders, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to holders of Debt Securities affected at their addresses as they shall appear
on the Debt Security Register. Such notice shall be mailed not less than 20 nor
more than 180 days prior to the date fixed for the meeting.
SECTION 8.03 CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
holders of at least 10% in aggregate principal amount of the Debt Securities
then outstanding, shall have requested the Indenture Trustee to call a meeting
of Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Indenture Trustee shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and the
place in [COMPANY CITY] for such meeting and may call such meeting to take any
action authorized in Section 8.01, by mailing notice thereof as provided in
Section 8.02.
SECTION 8.04 QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Securityholders, a Person
shall be (a) a holder of one or more Debt Securities or (b) a Person appointed
by an instrument in writing as proxy by a holder of one or more Debt Securities.
The only Persons who shall be entitled to be present or to speak at any meeting
of Securityholders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Indenture Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION 8.05 REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Indenture
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Debt Securities
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate.
The Indenture Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent
-47-
chairman and a permanent secretary of the meeting shall be elected by majority
vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each holder
of Debt Securities with respect to which such meeting is being held or proxy
therefor shall be entitled to one vote for each $1,000 principal amount of Debt
Securities held or represented by such holder; PROVIDED, HOWEVER, that no vote
shall be cast or counted at any meeting in respect of any Debt Security
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Debt Securities held by such Chairman or instruments in writing as
aforesaid duly designating such chairman as the person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant to
the provisions of Section 8.02 or 8.03 may be adjourned from time to time by a
majority of those present, whether or not constituting a quorum and the meeting
may be held as so adjourned without further notice.
SECTION 8.06 VOTING.
The vote upon any resolution submitted to any meeting of holders of
Debt Securities with respect to which such meeting is held shall be by written
ballots on which shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the Debt Securities
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 8.02. The record
shall show the serial numbers of the Debt Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Indenture
Trustee to be preserved by the Indenture Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated. The holders of the
Initial Securities and the Exchange Securities shall vote for all purposes as a
single class.
SECTION 8.07 QUORUM; ACTIONS.
The Persons entitled to vote a majority in aggregate principal amount
of the Debt Securities then outstanding shall constitute a quorum for a meeting
of Securityholders; PROVIDED, HOWEVER, that if any action is to be taken at such
meeting with respect to a consent, waiver, request, demand, notice,
authorization, direction or other action which may be given by the holders of
not less than a specified percentage in aggregate principal amount of the Debt
Securities then outstanding, the Persons holding or representing such specified
percentage in aggregate principal amount of the Debt Securities then outstanding
will constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Securityholders, be dissolved. In any other case, the
-48-
meeting may be adjourned for a period of not less than 10 days as determined by
the permanent chairman of the meeting prior to the adjournment of such meeting.
In the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as determined by
the permanent chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 8.02, except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the aggregate principal amount
of the Debt Securities then outstanding which shall constitute a quorum.
Except as limited by the proviso in the first paragraph of Section
9.02, any resolution presented to a meeting or adjourned meeting duly reconvened
at which a quorum is present as aforesaid may be adopted by the affirmative vote
of the holders of a majority in aggregate principal amount of the Debt
Securities then outstanding; PROVIDED, HOWEVER, that, except as limited by the
proviso in the first paragraph of Section 9.02, any resolution with respect to
any consent, waiver, request, demand, notice, authorization, direction or other
action that this Indenture expressly provides may be given by the holders of not
less than a specified percentage in outstanding principal amount of the Debt
Securities may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid only by the affirmative vote of
the holders of not less than such specified percentage in aggregate principal
amount of the Debt Securities then outstanding.
Any resolution passed or decision taken at any meeting of holders of
Debt Securities duly held in accordance with this Section 8.07 shall be binding
on all the Securityholders, whether or not present or represented at the
meeting.
ARTICLE IX
AMENDMENTS
SECTION 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS.
The Company, when authorized by a Board Resolution, and the Indenture
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto, without the consent of the Securityholders, for
one or more of the following purposes:
(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company, pursuant to Article XI
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of Debt Securities
as the Board of Directors shall consider to be for the protection of the holders
of such Debt Securities, and to make the occurrence, or the occurrence and
continuance, of a Default in any of such additional covenants, restrictions or
conditions a Default or an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set forth;
PROVIDED, HOWEVER, that in respect of any such additional covenant, restriction
or condition such supplemental indenture
-49-
may provide for a particular period of grace after Default (which period may be
shorter or longer than that allowed in the case of other Defaults) or may
provide for an immediate enforcement upon such Default or may limit the remedies
available to the Indenture Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture, PROVIDED, THAT any such action shall not adversely
affect the interests of the holders of the Debt Securities then outstanding;
(d) to add to, delete from, or revise the terms of Debt Securities,
including, without limitation, any terms relating to the issuance, exchange,
registration or transfer of Debt Securities, including to provide for transfer
procedures and restrictions substantially similar to those applicable to the
Capital Securities, as required by Section 2.09 (for purposes of assuring that
no registration of Debt Securities is required under the Securities Act),
PROVIDED, that any such action shall not adversely affect the interests of the
holders of the Debt Securities then outstanding (it being understood, for
purposes of this proviso, that transfer restrictions on Debt Securities
substantially similar to those applicable to Capital Securities shall not be
deemed to adversely affect the holders of the Debt Securities);
(e) to evidence and provide for the acceptance of appointment hereunder
by a successor Indenture Trustee with respect to the Debt Securities and to add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Indenture Trustee, pursuant to the requirements of Section 6.11;
(f) to qualify or maintain qualification of this Indenture under the
Trust Indenture Act;
(g) to make any change (other than as elsewhere provided in this
Section) that does not adversely affect the rights of any Securityholder in any
material respect; or
(h) to provide for the issuance of and establish the form and terms and
conditions of the Debt Securities, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or the Debt
Securities, or to add to the rights of the holders of Debt Securities.
The Indenture Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any property thereunder, but
the Indenture Trustee shall not be obligated to, but may in its discretion,
enter into any such supplemental indenture which affects the Indenture Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Indenture Trustee without the
consent of the holders of any of
-50-
the Debt Securities at the time outstanding, notwithstanding any of the
provisions of Section 9.02.
SECTION 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent (evidenced as provided in Section 7.01) of the holders
of a majority in aggregate principal amount of the Debt Securities at the time
outstanding affected by such supplemental indenture, the Company, when
authorized by a Board Resolution, and the Indenture Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act, then in
effect, applicable to indentures qualified thereunder) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities; PROVIDED, HOWEVER, that no
such supplemental indenture shall, without the consent of the holders of each
Debt Security then outstanding and affected thereby, (i) change the Maturity
Date of any Debt Security, or reduce the principal of or any premium on, or
reduce the rate or extend the time of payment of interest thereon (except
pursuant to Section 2.08), or reduce (other than as a result of the maturity or
earlier redemption of any such Debt Security in accordance with the terms of
this Indenture and such Debt Security) or increase the aggregate principal
amount of Debt Securities then outstanding, or change any of the redemption
provisions, or make the principal thereof or any interest or premium thereon
payable in any coin or currency other than United States Dollars, or impair or
affect the right of any Securityholder to institute suit for payment thereof, or
(ii) reduce the aforesaid percentage of Debt Securities the holders of which are
required to consent to any such supplemental indenture; and PROVIDED, FURTHER,
that if the Debt Securities are held by the Trust or the Indenture Trustee of
the Trust, such supplemental indenture shall not be effective until the holders
of a majority in aggregate Liquidation Amount of the outstanding Capital
Securities shall have consented to such supplemental indenture; PROVIDED,
FURTHER, that if the consent of the Securityholder of each outstanding Debt
Security is required, such supplemental indenture shall not be effective until
each holder of the outstanding Capital Securities shall have consented to such
supplemental indenture.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Indenture Trustee of evidence of the consent of Securityholders
(and holders of Capital Securities, if required) as aforesaid, the Indenture
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Indenture Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Indenture Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
Promptly after the execution by the Company and the Indenture Trustee
of any supplemental indenture pursuant to the provisions of this Section 9.02,
the Indenture Trustee shall transmit by mail, first class postage prepaid, a
notice, prepared by the Company, setting forth in general terms the substance of
such supplemental indenture, to the Securityholders as their names and addresses
appear upon the Debt Security Register. Any failure of the Indenture Trustee to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.
-51-
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURES.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Indenture Trustee, the Company and
the holders of Debt Securities shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 9.04 NOTATION ON DEBT SECURITIES.
Debt Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article IX may bear a
notation as to any matter provided for in such supplemental indenture. If the
Company or the Indenture Trustee shall so determine, new Debt Securities so
modified as to conform, in the opinion of the Indenture Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Indenture Trustee or the Authenticating Agent and delivered
in exchange for the Debt Securities then outstanding.
SECTION 9.05 EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TO INDENTURE TRUSTEE.
The Indenture Trustee, subject to the provisions of Sections 6.01 and
6.02, shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article IX. The Trustee shall also
receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article IX is authorized or permitted by,
and conforms to, the terms of this Article IX and that it is proper for the
Trustee under the provisions of this Article IX to join in the execution
thereof.
ARTICLE X
REDEMPTION OF DEBT SECURITIES
SECTION 10.01 OPTIONAL REDEMPTION.
The Company shall have the right, subject to the receipt by the Company
of the prior approval from the OTS or such other bank regulatory authority that
is the primary holding company regulator of the Company, if then required under
applicable capital guidelines or policies of the OTS or such other bank
regulatory authority that is the primary holding company
-52-
regulator of the Company, to redeem the Debt Securities, in whole or (provided
that unpaid interest and Liquidated Damages, if any, accrued thereon has been
paid on all Debt Securities for all Interest Periods terminating on or prior to
such date) from time to time in part, on any Interest Payment Date on or after
April 15, 2009 (each, an "Optional Redemption Date"), at the Optional Redemption
Price.
SECTION 10.02 SPECIAL EVENT REDEMPTION.
If a Special Event shall occur and be continuing, the Company shall
have the right, subject to the receipt by the Company of prior approval from the
OTS, if then required under applicable capital guidelines or policies of the OTS
or such other bank regulatory authority that is the primary holding company
regulator of the Company, to redeem the Debt Securities, in whole but not in
part, at any time within 90 days following the occurrence of such Special Event
(the "Special Redemption Date"), at the Special Redemption Price.
SECTION 10.03 NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES.
In case the Company shall desire to exercise the right to redeem all,
or, as the case may be, any part of the Debt Securities, it shall fix a date for
redemption and shall mail, or cause the Indenture Trustee to mail (at the
expense of the Company), a notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to the holders of Debt
Securities so to be redeemed as a whole or in part at their last addresses as
the same appear on the Debt Security Register. Such mailing shall be by first
class mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Debt Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security.
Each such notice of redemption shall specify the CUSIP number, if any,
of the Debt Securities to be redeemed, the date fixed for redemption, the price
at which Debt Securities are to be redeemed, the place or places of payment,
that payment will be made upon presentation and surrender of such Debt
Securities, that interest accrued to the date fixed for redemption will be paid
as specified in said notice, and that on and after said date interest thereon or
on the portions thereof to be redeemed will cease to accrue. If less than all
the Debt Securities are to be redeemed, the notice of redemption shall specify
the numbers of the Debt Securities to be redeemed. In case the Debt Securities
are to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Debt Security, a
new Debt Security or Debt Securities in principal amount equal to the unredeemed
portion thereof will be issued.
Prior to 10:00 a.m., New York City time, on the Optional Redemption
Date or the Special Redemption Date specified in the notice of redemption given
as provided in this Section 10.03, the Company will deposit with the Indenture
Trustee or with one or more Paying Agents an amount of money sufficient to
redeem on such date all the Debt Securities so called for redemption at the
applicable price therefor, together with unpaid interest accrued to such date.
-53-
The Company will give the Indenture Trustee notice not less than 45 nor
more than 75 days prior to the date fixed for redemption as to the price at
which the Debt Securities are to be redeemed and the aggregate principal amount
of Debt Securities to be redeemed and the Indenture Trustee shall select, in
such manner as in its sole discretion it shall deem appropriate and fair, the
Debt Securities or portions thereof (in integral multiples of $1,000) to be
redeemed.
SECTION 10.04 PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION.
If notice of redemption has been given as provided in Section 10.03,
the Debt Securities or portions of Debt Securities with respect to which such
notice has been given shall become due and payable on the related Optional
Redemption Date or Special Redemption Date (as the case may be) and at the place
or places stated in such notice at the applicable price therefor, together with
unpaid interest accrued thereon to said Optional Redemption Date or the Special
Redemption Date (as the case may be), and on and after said Optional Redemption
Date or the Special Redemption Date (as the case may be) (unless the Company
shall default in the payment of such Debt Securities at the redemption price,
together with unpaid interest accrued thereon to said date) interest on the Debt
Securities or portions of Debt Securities so called for redemption shall cease
to accrue. On presentation and surrender of such Debt Securities at a place of
payment specified in said notice, such Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable price
therefor, together with unpaid interest accrued thereon to said Optional
Redemption Date or the Special Redemption Date (as the case may be).
Upon presentation of any Debt Security redeemed in part only, the
Company shall execute and the Indenture Trustee shall authenticate and make
available for delivery to the holder thereof, at the expense of the Company, a
new Debt Security or Debt Securities of authorized denominations in principal
amount equal to the unredeemed portion of the Debt Security so presented.
ARTICLE XI
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
SECTION 11.01 COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Debt Securities
shall prevent any consolidation or merger of the Company with or into any other
Person (whether or not affiliated with the Company, as the case may be), or
successive consolidations or mergers in which the Company or its successor or
successors, as the case may be, shall be a party or parties, or shall prevent
any sale, conveyance, transfer, lease or other disposition of the property of
the Company, or its successor or successors as the case may be, as an entirety,
or substantially as an entirety, to any other Person (whether or not affiliated
with the Company, or its successor or successors, as the case may be) authorized
to acquire and operate the same; PROVIDED, THAT (a) the Company is the surviving
Person, or the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, conveyance, transfer, lease
or other disposition of property is made is a Person organized and existing
under the laws of the United States or any State thereof or the District of
Columbia, and such Person expressly assumes all of the obligations of the
Company under the Debt Securities, this Indenture, the Guarantee and the
-54-
Declaration and (ii) after giving effect to, any such consolidation, merger,
sale, conveyance, transfer, lease or other disposition, no Default or Event of
Default shall have occurred and be continuing.
SECTION 11.02 SUCCESSOR PERSON TO BE SUBSTITUTED FOR COMPANY.
In case of any such consolidation, merger, sale, conveyance, transfer,
lease or other disposition, and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Indenture
Trustee and reasonably satisfactory in form to the Indenture Trustee, of the
obligation of due and punctual payment of the principal of and premium, if any,
and interest and Liquidated Damages, if any, on all of the Debt Securities and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Company, such
successor Person shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the Company, and the Company
thereupon shall be relieved of any further liability or obligation hereunder or
upon the Debt Securities. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any
or all of the Debt Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Indenture Trustee or the
Authenticating Agent; and, upon the order of such successor Person instead of
the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Indenture Trustee or the Authenticating Agent shall
authenticate and deliver any Debt Securities which previously shall have been
signed and delivered by any officer of the Company to the Indenture Trustee or
the Authenticating Agent for authentication, and any Debt Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Indenture Trustee or the Authenticating Agent for that purpose. All the Debt
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debt Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Debt
Securities had been issued at the date of the execution hereof.
SECTION 11.03 OPINION OF COUNSEL TO BE GIVEN INDENTURE TRUSTEE.
The Indenture Trustee, subject to the provisions of Sections 6.01 and
6.02, shall be entitled to receive an Opinion of Counsel as conclusive evidence
that any consolidation, merger, sale, conveyance, transfer, lease or other
disposition, and any assumption, permitted or required by the terms of this
Article XI complies with the provisions of this Article XI.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 12.01 DISCHARGE OF INDENTURE.
When (a) the Company shall deliver to the Indenture Trustee for
cancellation all Debt Securities theretofore authenticated (other than any Debt
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced as provided in Section 2.10) and not theretofore canceled, or (b)
all the Debt Securities not theretofore canceled or delivered to the Indenture
Trustee for cancellation shall have become due and payable, or are by their
terms to
-55-
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Indenture Trustee for the giving
of notice of redemption, and the Company shall deposit with the Indenture
Trustee, in trust, funds (which shall be immediately due and payable) sufficient
to pay on the Maturity Date or upon redemption all of the Debt Securities (other
than any Debt Securities which shall have been destroyed, lost or stolen and
which shall have been replaced as provided in Section 2.10) not theretofore
canceled or delivered to the Indenture Trustee for cancellation, including
principal and premium, if any, and interest and Liquidated Damages, if any, due
or to become due to the Maturity Date, any Optional Redemption Date or the
Special Event Redemption Date, as the case may be, but excluding, however, the
amount of any moneys for the payment of principal of and premium, if any, or
interest or Liquidated Damages, if any, on the Debt Securities (1) theretofore
repaid to the Company in accordance with the provisions of Section 12.04, or (2)
paid to any State or to the District of Columbia pursuant to its unclaimed
property or similar laws, and if, in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect except for the provisions of
Sections 2.09, 2.10, 3.01, 3.02, 3.04, 6.06, 6.10 and 12.04 hereof, which shall
survive until such Debt Securities shall mature or are redeemed, as the case may
be, and are paid in full. Thereafter, Sections 6.06, 6.10 and 12.04 shall
survive, and the Indenture Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with, and at the cost and expense
of the Company, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture; the Company, however, hereby agrees to reimburse
the Indenture Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Indenture Trustee in connection with this Indenture or
the Debt Securities.
SECTION 12.02 DEPOSITED MONEYS TO BE HELD IN TRUST BY INDENTURE
TRUSTEE.
Subject to the provisions of Section 12.04, all moneys deposited with
the Indenture Trustee pursuant to Section 12.01 shall be held in trust and
applied by it to the payment, either directly or through any Paying Agent
(including the Company if acting as its own Paying Agent), to the holders of the
particular Debt Securities for the payment of which such moneys have been
deposited with the Indenture Trustee, of all sums due and to become due thereon
for principal, premium, if any, interest and Liquidated Damages, if any.
SECTION 12.03 PAYING AGENT TO REPAY MONEYS HELD.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any Paying Agent of the Debt Securities (other than the Indenture
Trustee) shall, upon written demand of the Company, be repaid to it or paid to
the Indenture Trustee, and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
SECTION 12.04 RETURN OF UNCLAIMED MONEYS.
Any moneys deposited with or paid to the Indenture Trustee or any
Paying Agent for payment of the principal of and premium, if any, or interest or
Liquidated Damages, if any, on Debt Securities and not applied but remaining
unclaimed by the holders of Debt Securities for
-56-
two years after the date upon which the principal of and premium, if any, or
interest or Liquidated Damages, if any, on such Debt Securities, as the case may
be, shall have become due and payable, shall be repaid to the Company by the
Indenture Trustee or such Paying Agent; and the holder of any of the Debt
Securities shall thereafter look only to the Company for any payment which such
holder may be entitled to collect and all liability of the Indenture Trustee or
such Paying Agent with respect to such moneys shall thereupon cease.
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01 INDENTURE AND DEBT SECURITIES SOLELY CORPORATE
OBLIGATIONS.
No recourse for the payment of the principal of and premium, if any, or
interest or Liquidated Damages, if any, on any Debt Security, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture, or in any
supplemental indenture, or in any Debt Security, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, officer, director employee or agent as such, past,
present or future, of the Company or of any predecessor or successor Person to
the Company, either directly or through the Company or any successor Person to
the Company, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Debt Securities.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 SUCCESSORS.
All of the covenants, stipulations, promises and agreements of the
Company contained in this Indenture shall also bind the Company's successors and
assigns whether so expressed or not.
SECTION 14.02 OFFICIAL ACTS BY SUCCESSOR COMPANY.
Any act or proceeding that, by any provision of this Indenture, is
authorized or required to be done or performed by any board, committee, officer
or other authorized Person of the Company shall and may be done and performed
with like force and effect by the like board, committee or officer of any Person
that shall at the time be the lawful successor of the Company.
SECTION 14.03 SURRENDER OF COMPANY POWERS.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Indenture Trustee
may surrender any of the powers reserved to the Company hereunder, and thereupon
such power so surrendered shall terminate both as to the Company and as to any
permitted successor Person.
-57-
SECTION 14.04 ADDRESSES FOR NOTICES, ETC.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Indenture Trustee or by the
holders of Debt Securities on the Company may be given or served by being
deposited postage prepaid by first class mail, registered or certified mail,
overnight courier service or confirmed telecopy addressed (until another address
is filed by the Company with the Indenture Trustee for the purpose) to:
Dime Community Bancshares, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Any notice, direction, request or demand by any Securityholder or the
Company to or upon the Indenture Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if received in writing by (unless
another address is provided by the Indenture Trustee to the Securityholder for
such purpose):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration.
Any notice or communication to a Securityholder shall be mailed by
first class mail to his or her address shown on the Debt Security Register kept
by the security registrar for the Debt Securities.
Notices required to be given to the Indenture Trustee or the
Authenticating Agent shall be in writing, personally delivered or mailed
first-class postage prepaid to each of the foregoing, or at such other address
as shall be designated by written notice to the other parties.
SECTION 14.05 GOVERNING LAW.
This Indenture and each Debt Security shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of said State without
regard to conflict of law principles of said State other than Section 5-1401 of
the New York General Obligations Law.
SECTION 14.06 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Upon any application or demand by the Company to the Indenture Trustee
to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Indenture Trustee an Officers' Certificate stating that in
the opinion of the signers all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with (except that no such Opinion of
Counsel is required to be furnished to the Indenture Trustee in connection with
the authentication and issuance of Debt Securities.)
-58-
Each certificate or opinion provided for in this Indenture and
delivered to the Indenture Trustee with respect to compliance with a condition
or covenant provided for in this Indenture (except certificates delivered
pursuant to Section 3.05) shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condition and the
definitions relating thereto; (2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
SECTION 14.07 BUSINESS DAY CONVENTION.
In any case where the date of payment of principal of or premium, if
any, or interest or Liquidated Damages, if any, on the Debt Securities would
otherwise fall on a day that is not a Business Day, the payment of such
principal of or premium, if any, or interest or Liquidated Damages, if any, on
the Debt Securities will not be made on such date but will be made on the next
succeeding Business Day, and without any interest or other payment in respect of
such delay, all with the same force and effect as if made on the original date
of payment.
SECTION 14.08 TRUST INDENTURE ACT TO CONTROL.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 14.09 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents and the titles and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 14.10 EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 14.11 SEPARABILITY.
In case any one or more of the provisions contained in this Indenture
or in the Debt Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of the Debt
Securities, but this Indenture and the Debt Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
-59-
SECTION 14.12 ASSIGNMENT.
Subject to Article XI, the Company will have the right at all times to
assign any of its respective rights or obligations under this Indenture and the
Debt Securities to a direct or indirect wholly owned Subsidiary of the Company;
PROVIDED, THAT, in the event of any such assignment, the Company will remain
liable for all such obligations. Subject to the foregoing, this Indenture is
binding upon and inures to the benefit of the parties thereto and their
respective successors and assigns. This Indenture may not otherwise be assigned
by the parties thereto.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01 AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each holder of Debt Securities
issued hereunder and under any supplemental indenture (the "Additional
Provisions") by such holder's acceptance thereof likewise covenants and agrees,
that the Debt Securities shall be issued subject to the provisions of this
Article XV; and each holder of a Debt Security, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment by the Company of the payments due (including Liquidated
Damages, if any) on all Debt Securities issued hereunder and under any
Additional Provisions shall, to the extent and in the manner hereinafter set
forth, be subordinated and junior in right of payment to the prior payment in
full of all Senior Debt, whether outstanding at the date of this Indenture or
thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 15.02 DEFAULT ON SENIOR DEBT.
In the event and during the continuation of any default by the Company
in the payment of principal or premium, if any, or interest or Liquidated
Damages, if any, or any other payment due on any Senior Debt following any
applicable grace periods, or in the event that the maturity of any Senior Debt
has been accelerated because of a default and such acceleration has not been
rescinded or canceled and such Senior Debt has not been paid in full, then, in
either case, no payment shall be made by the Company with respect to the
payments on the Debt Securities (including Liquidated Damages, if any).
In the event that, notwithstanding the foregoing, any payment is
received by the Indenture Trustee, or any Securityholder, when such payment is
prohibited by this Section 15.02, such payment shall, subject to Section 15.06,
be held in trust for the benefit of, and shall be paid over or delivered by the
Indenture Trustee (if the notices required by Section 15.06 have been received
by the Indenture Trustee) or by any Securityholder, to the holders of Senior
Debt or their respective representatives, or to the trustee or trustees under
any indenture pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, but only to the extent that the holders
of the Senior Debt (or their representative or representatives or a trustee)
notify the Indenture Trustee in writing within 90 days of such
-60-
payment of the amounts then due and owing on such Senior Debt, and only the
amounts specified in such notices to the Indenture Trustee shall be paid to the
holders of such Senior Debt.
SECTION 15.03 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution, winding-up, liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, the holders of all Senior Debt of the Company
will first be entitled to receive payment in full of all amounts due on or in
respect of such Senior Debt, before any payment is made by the Company on
account of the principal of, or premium, if any, or interest or Liquidated
Damages, if any, on the Debt Securities; and upon any such dissolution,
winding-up, liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, which the Securityholders or the Indenture Trustee would
be entitled to receive from the Company, except for the provisions of this
Article XV, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Securityholders or by the Indenture Trustee under the
Indenture if received by them or it, directly to the holders of Senior Debt of
the Company (PRO RATA to such holders on the basis of the respective amounts of
Senior Debt held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Debt may have
been issued, as their respective interests may appear, to the extent necessary
to pay such Senior Debt in full, in money or moneys worth, after giving effect
to any concurrent payment or distribution to or for the holders of such Senior
Debt, before any payment or distribution is made to the Securityholders or to
the Indenture Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character prohibited by the
foregoing, whether in cash, property or securities, shall be received by the
Indenture Trustee or any Securityholder before all Senior Debt is paid in full,
or provision is made for such payment in money in accordance with its terms,
such payment or distribution shall be held in trust for the benefit of and shall
be paid over or delivered by the Indenture Trustee (if the notices required by
Section 15.06 have been received by the Indenture Trustee) or by any
Securityholder, to the holders of such Senior Debt or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Debt may have been issued, as their
respective interests may appear, as calculated by the Company, for application
to the payment of all Senior Debt remaining unpaid to the extent necessary to
pay all such Senior Debt in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Debt.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other Person
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XV with respect
to the Debt Securities to the payment of Senior Debt that may at the time be
outstanding;
-61-
PROVIDED, THAT (i) such Senior Debt is assumed by the new Person, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of such Senior Debt are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the sale, conveyance, transfer, lease or
other disposition of its property as an entirety, or substantially as an
entirety, to another Person upon the terms and conditions provided for in
Article XI of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 15.03 if such
other Person shall, as a part of such consolidation, merger, sale, conveyance,
transfer, lease or other disposition, comply with the conditions stated in
Article XI of this Indenture. Nothing in Section 15.02 or in this Section 15.03
shall apply to claims of, or payments to, the Indenture Trustee under or
pursuant to Section 6.06 of this Indenture.
SECTION 15.04 SUBROGATION.
Subject to the payment in full of all Senior Debt, the rights of the
Securityholders shall be subrogated to the rights of the holders of such Senior
Debt to receive payments or distributions of cash, property or securities of the
Company, as the case may be, applicable to such Senior Debt until the principal
of and premium, if any, and interest and Liquidated Damages, if any, on the Debt
Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Debt of any cash,
property or securities to which the Securityholders or the Indenture Trustee
would be entitled except for the provisions of this Article XV, and no payment
over pursuant to the provisions of this Article XV to or for the benefit of the
holders of such Senior Debt by Securityholders or the Indenture Trustee, shall,
as between the Company, its creditors other than holders of Senior Debt of the
Company, and the holders of the Debt Securities, be deemed to be a payment by
the Company to or on account of such Senior Debt. It is understood that the
provisions of this Article XV are and are intended solely for the purposes of
defining the relative rights of the holders of the Debt Securities, on the one
hand, and the holders of such Senior Debt on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or
in the Debt Securities is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Debt of the Company, and the
holders of the Debt Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Debt Securities the principal of
and premium, if any, and interest and Liquidated Damages, if any, on the Debt
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
holders of the Debt Securities and creditors of the Company, as the case may be,
other than the holders of Senior Debt of the Company nor shall anything herein
or therein prevent the Indenture Trustee or the holder of any Debt Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article XV of the
holders of such Senior Debt in respect of cash, property or securities of the
Company, as the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article XV, the Indenture Trustee, subject to the provisions of Article
VI of this Indenture, and the Securityholders shall be entitled to conclusively
rely upon any order or decree made by any court
-62-
of competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, trustee, agent or other Person making such payment or
distribution, delivered to the Indenture Trustee or to the Securityholders, for
the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Debt and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XV.
SECTION 15.05 INDENTURE TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Securityholder, by such Securityholder's acceptance thereof,
authorizes and directs the Indenture Trustee on such Securityholder's behalf to
take such action (as the Indenture Trustee, in its discretion, deems necessary
or appropriate, upon instruction or otherwise) to effectuate the subordination
provided in this Article XV and appoints the Indenture Trustee such
Securityholder's attorney-in-fact for any and all such purposes.
SECTION 15.06 NOTICE BY THE COMPANY.
The Company shall give prompt written notice to a Responsible Officer
of the Indenture Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Indenture Trustee in respect of
the Debt Securities pursuant to the provisions of this Article XV.
Notwithstanding the provisions of this Article XV or any other provision of this
Indenture or any Additional Provisions, the Indenture Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Indenture Trustee in respect of the
Debt Securities pursuant to the provisions of this Article XV, unless and until
a Responsible Officer of the Indenture Trustee shall have received written
notice thereof from the Company or a holder or holders of Senior Debt or from
any trustee therefor; and before the receipt of any such written notice, the
Indenture Trustee, subject to the provisions of Article VI of this Indenture,
shall be entitled in all respects to assume that no such facts exist; PROVIDED,
HOWEVER that if the Indenture Trustee shall not have received the notice
provided for in this Section 15.06 at least two Business Days prior to the date
upon which, by the terms hereof, any money may become payable for any purpose
(including, without limitation, the payment of the principal of and premium, if
any, and interest and Liquidated Damages, if any, on any Debt Security, then,
anything herein contained to the contrary notwithstanding, the Indenture Trustee
shall have full power and authority to receive such money and to apply the same
to the purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days prior
to such date.
The Indenture Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on a written notice delivered
to it by a Person representing himself to be a holder of Senior Debt of the
Company (or a trustee or representative on behalf of such holder), as the case
may be, to establish that such notice has been given by a holder of such Senior
Debt or a trustee on behalf of any such holder or holders. In the event that the
Indenture Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of such Senior Debt to
participate in any payment or distribution pursuant to this Article XV, the
Indenture Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Indenture Trustee as to the amount of such Senior Debt held
by
-63-
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article XV, and, if such evidence is not furnished, the
Indenture Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 15.07 RIGHTS OF THE INDENTURE TRUSTEE; HOLDERS OF SENIOR DEBT.
The Indenture Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XV in respect of any Senior Debt at any
time held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Indenture Trustee of any of its
rights as such holder.
With respect to the holders of Senior Debt of the Company, the
Indenture Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of such Senior Debt shall
be read into this Indenture or any Additional Provisions against the Indenture
Trustee. The Indenture Trustee shall not owe or be deemed to owe any fiduciary
duty to the holders of such Senior Debt and, subject to the provisions of
Article VI of this Indenture, the Indenture Trustee shall not be liable to any
holder of such Senior Debt if it shall pay over or deliver to Securityholders,
the Company or any other Person money or assets to which any holder of such
Senior Debt shall be entitled by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Indenture Trustee under or pursuant to Section 6.06.
SECTION 15.08 SUBORDINATION MAY NOT BE IMPAIRED.
No right of any present or future holder of any Senior Debt of the
Company to enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company, as the case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, as the case may be,
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt of the Company may, at any time and from time to
time, without the consent of or notice to the Indenture Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XV or
the obligations hereunder of the holders of the Debt Securities to the holders
of such Senior Debt, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
such Senior Debt, or otherwise amend or supplement in any manner such Senior
Debt or any instrument evidencing the same or any agreement under which such
Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior Debt; (iii)
release any Person liable in any manner for the collection of such Senior Debt;
and (iv) exercise or refrain from exercising any rights against the Company, as
the case may be, and any other Person.
-64-
Wilmington Trust Company in its capacity as Indenture Trustee hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
DIME COMMUNITY BANCSHARES, INC.
By: /S/ XXXXXXX X. XXXXXX
---------------------
Xxxxxxx X. Xxxxxx
President and Chief Operating Officer
Wilmington Trust Company,
as Indenture Trustee
By: /S/ XXXX X. ST. XXXXX
---------------------
Xxxx X. St. Amand
Assistant Vice President
-65-
EXHIBIT A
---------
FIXED RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBT SECURITY
(FORM OF FACE OF SECURITY)
[IF THIS DEBT SECURITY IS A GLOBAL SECURITY INSERT: THIS DEBT SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A
NOMINEE OF DTC. THIS DEBT SECURITY IS EXCHANGEABLE FOR DEBT SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS DEBT
SECURITY (OTHER THAN A TRANSFER OF THIS DEBT SECURITY AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS DEBT SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS DEBT SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS DEBT SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS DEBT SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS DEBT SECURITY OR ANY SUCH INTEREST OR
PARTICIPATION HEREIN, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS (i) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF (Y) THE ORIGINAL
ISSUANCE HEREOF AND (Z) THE LAST DATE ON WHICH DIME COMMUNITY BANCSHARES. INC.
(THE "COMPANY") OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER
A-1
OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (ii) SUCH LATER DATE,
IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW ONLY (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(2), (3), (7) OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
DEBT SECURITY OR SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO THE COMPANY, IN ACCORDANCE WITH THE INDENTURE, A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS DEBT SECURITY
FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS DEBT SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS DEBT SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
MINIMUM DENOMINATIONS OF $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF DEBT SECURITIES OR ANY INTEREST THEREIN IN A DENOMINATION
OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED
TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE
SHALL NOT BE DEEMED TO BE THE HOLDER OF THIS DEBT SECURITY OR INTEREST HEREIN
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR
PREMIUM, IF ANY, OR INTEREST OR LIQUIDATED DAMAGES, IF ANY, ON THIS DEBT
SECURITY OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL NOT BE
DEEMED TO HAVE ANY INTEREST WHATSOEVER IN THIS DEBT SECURITY.
THE HOLDER OF THIS DEBT SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS
NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT
A-2
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") (EACH A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY, AND NO
PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD THIS DEBT
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH PURCHASER OR
HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS DEBT
SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THIS DEBT SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF AS
THE CASE MAY BE THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE AND HOLDING
WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS DEBT SECURITY WILL
DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED
STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT
INSURANCE CORPORATION (THE "FDIC"). THIS OBLIGATION IS SUBORDINATED TO THE
CLAIMS OF THE DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE
COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES AND IS NOT SECURED.
THE HOLDER OF THIS DEBT SECURITY OR ANY INTEREST HEREIN BY ITS
ACCEPTANCE HEREOF AGREES TO BE BOUND BY EACH OF THE REGISTRATION RIGHTS
AGREEMENT AND THE LIQUIDATED DAMAGES AGREEMENT, EACH DATED AS OF MARCH 12, 2004,
BY AND AMONG THE TRUST, THE COMPANY AND THE INITIAL PURCHASER NAMED THEREIN, AS
AMENDED FROM TIME TO TIME.
A-3
Fixed Rate Junior Subordinated Deferrable Interest Debt Security
Due 2034, Series A/Series B
of
Dime Community Bancshares, Inc.
Dime Community Bancshares, Inc., Delaware corporation (the "Company,"
which term includes any successor corporation under the Indenture), for value
received, hereby promises to pay to __________________ or registered assigns,
the principal sum of __________________ Dollars on April 14, 2034 (the "Maturity
Date"), unless previously redeemed, and to pay interest at a fixed rate per
annum equal to 7.0% (together with the rate of any applicable Liquidated Damages
(as defined below), the "Interest Rate") on the outstanding principal amount
hereof from March 19, 2004, or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
January 15th, April 15th, July 15th and October 15th of each year, commencing
July 15, 2004, and at maturity or any earlier redemption, until the principal
hereof shall have become due and payable, and on any overdue principal and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum, compounded quarterly. The amount of interest payable hereon
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date other than at maturity or any earlier
redemption will, as provided in the Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities, as defined in said
Indenture) is registered at the close of business on the Regular Record Date for
such interest installment, which shall be at the close of business on the 15th
calendar day prior to the relevant Interest Payment Date, whether or not such
day is a Business Day (as defined in the Indenture). Any such interest
installment (other than Deferred Interest (as defined herein)) not punctually
paid or duly provided for shall forthwith cease to be payable to the holders on
such Regular Record Date and may be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Indenture Trustee for the
payment of such defaulted interest, notice whereof shall be given to the holders
of Debt Securities not less than 10 days prior to such special record date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debt Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
Pursuant to the Indenture, in certain circumstances the Company will be
required to pay Additional Amounts (as defined in the Indenture) with respect to
this Debt Security. Pursuant to the Registration Rights Agreement and the
Liquidated Damages Agreement, in certain limited circumstances the Company will
be required to pay Liquidated Damages (as defined in the Registration Rights
Agreement and the Liquidated Damages Agreement) with respect to this Debt
Security.
A-4
Payment of the principal of and premium, if any, and interest and
Liquidated Damages, if any, on this Debt Security due on the Maturity Date, any
Optional Redemption Date or the Special Redemption Date, as the case may be,
shall be made in immediately available funds against presentation and surrender
of this Debt Security at the office or agency of the Indenture Trustee
maintained for that purpose in Wilmington, Delaware, or at the office or agency
of any other Paying Agent appointed by the Company maintained for that purpose
in Wilmington, Delaware or New York, New York. Payment of interest and
Liquidated Damages, if any, on this Debt Security due on any Interest Payment
Date other than the Maturity Date, any Optional Redemption Date or the Special
Redemption Date, as the case may be, shall be made at the option of the Company
by check mailed to the holder thereof at such address as shall appear in the
Debt Security Register or by wire transfer of immediately available funds to an
account appropriately designated by the holder hereof. Notwithstanding the
foregoing, so long as the holder of this Debt Security is the Institutional
Trustee (as defined in the Declaration), payment of the principal of and
premium, if any, and interest and Liquidated Damages, if any, on this Debt
Security shall be made in immediately available funds when due at such place and
to such account as may be designated by the Institutional Trustee. All payments
in respect of this Debt Security shall be payable in any coin or currency of the
United States of America that at the time of payment is legal tender for payment
of public and private debts.
In the event that any date on which the principal of or premium, if
any, or interest or Liquidated Damages, if any, on this Debt Security would
otherwise fall on a day that is not a Business Day, then the payment payable on
such date will be made on the next succeeding day that is a Business Day,
without any interest or other payment in respect of any such delay, all with the
same force and effect as if made on such date.
The indebtedness evidenced by this Debt Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Debt (as defined in the Indenture), and this
Debt Security is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debt Security, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Indenture
Trustee on such holder's behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Indenture Trustee such holder's attorney-in-fact for any and all
such purposes. Each holder hereof, by such holder's acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Debt, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
The Company waives diligence, presentment, demand for payment, notice
of nonpayment, notice of protest, and all other demands and notices.
By acceptance of this Debt Security, each holder and beneficial owner
thereof agrees to treat such Debt Security as indebtedness for United States
federal income tax purposes.
This Debt Security shall not be entitled to any benefit under the
Indenture or be valid or become obligatory for any purpose until the certificate
of authentication hereon shall have been signed by or on behalf of the Indenture
Trustee.
A-5
The provisions of this Debt Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
A-6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and sealed this ___ day of ________, _______.
DIME COMMUNITY BANCSHARES, INC.
By:_____________________________________
Xxxxxxx X. Xxxxxx
President and Chief Operating Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Fixed Rate Junior Subordinated Deferrable Interest
Debt Securities, Series A/Series B of Dime Community Bancshares, Inc. referred
to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
Dated:_________________ By:_____________________________________
Authorized Signatory
A-7
(FORM OF REVERSE OF SECURITY)
This Security is one of the Junior Subordinated Deferrable Interest
Debt Securities, Series A/Series B of the Company (herein sometimes referred to
as the "Debt Securities"), specified in the Indenture, all issued or to be
issued under and pursuant to an Indenture, dated as of March 19, 2004 (the
"Indenture"), duly executed and delivered between the Company and Wilmington
Trust Company, as Indenture Trustee (the "Indenture Trustee"), to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Indenture
Trustee, the Company and the holders of the Debt Securities. The Debt Securities
are limited in aggregate principal amount as specified in the Indenture.
So long as no Event of Default (as defined in the Indenture) has
occurred and is continuing, the Company shall have the right, from time to time
and without causing an Event of Default, to defer payments of interest on the
Debt Securities by extending the interest payment period on the Debt Securities
at any time and from time to time during the term of the Debt Securities, for up
to 20 consecutive quarterly periods (each such extended interest payment period,
together with all previous and further consecutive extensions thereof, is
referred to herein as an "Extension Period"). No Extension Period may end on a
date other than an Interest Payment Date or extend beyond the Maturity Date, any
Optional Redemption Date (as defined herein) or the Special Redemption Date (as
defined herein), as the case may be. During any Extension Period, interest will
continue to accrue on the Debt Securities, and interest on such accrued interest
(such accrued interest and interest thereon referred to herein as "Deferred
Interest") will accrue at an annual rate equal to the Interest Rate, compounded
quarterly from the date such Deferred Interest would have been payable were it
not for the Extension Period, to the extent permitted by applicable law. No
interest or Deferred Interest (except any Additional Amounts (as defined in the
Indenture) that may be due and payable) shall be due and payable during an
Extension Period, except at the end thereof. At the end of any Extension Period,
the Company shall pay all Deferred Interest then accrued and unpaid on the Debt
Securities; PROVIDED, HOWEVER, that during any Extension Period, the Company may
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock, (ii) make any payment of principal of or premium, if any, or
interest or Liquidated Damages, if any, on or repay, repurchase or redeem any
debt securities of the Company that rank PARI PASSU in all respects with or
junior in interest to the Debt Securities or (iii) make any payment under any
guarantees of the Company that rank in all respects PARI PASSU with or junior in
respect to the Guarantee (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company (A) in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of one or more employees, officers, directors or consultants, (B) in
connection with a dividend reinvestment or stockholder stock purchase plan or
(C) in connection with the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock), as
consideration in an acquisition transaction entered into prior to the occurrence
of (i), (ii) or (iii) above, (b) as a result of any exchange or conversion of
any class or series of the Company's capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the Company's capital
stock or of any class or series of the Company's indebtedness for any class or
series of the Company's capital stock, (c) the purchase of fractional interests
in shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock
A-8
or the security being converted or exchanged, (d) any declaration of a dividend
in connection with any stockholder's rights plan, or the issuance of rights,
stock or other property under any stockholder's rights plan, or the redemption
or repurchase of rights pursuant thereto or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks PARI PASSU with or
junior to such stock). Prior to the termination of any Extension Period, the
Company may further extend such Extension Period, PROVIDED, THAT no Extension
Period (including all previous and further consecutive extensions that are part
of such Extension Period) shall exceed 20 consecutive quarterly periods. Upon
the termination of any Extension Period and upon the payment of all Deferred
Interest, the Company may commence a new Extension Period, subject to the
foregoing requirements. The Company must give the Indenture Trustee notice of
its election to begin or extend an Extension Period at least one Business Day
prior to the Regular Record Date applicable to the next Interest Payment Date.
Upon the occurrence and continuation of a Tax Event, an Investment
Company Event or a Capital Treatment Event (each, a "Special Event"), the
Company shall have the right to redeem this Debt Security, at its option, in
whole with all other Debt Securities but not in part, at any time, within 90
days following the occurrence of such Special Event (the "Special Redemption
Date") at the Special Redemption Price (as defined herein).
The Company shall also have the right to redeem this Debt Security at
its option, in whole or (PROVIDED, THAT all accrued and unpaid interest and
Liquidated Damages, if any, have been paid on all Debt Securities for all
Interest Periods terminating on or prior to such date) from time to time in
part, on any Interest Payment Date on or after April 15, 2009 (each, an
"Optional Redemption Date"), at the Optional Redemption Price (as defined
herein).
Any redemption pursuant to the preceding two paragraphs will be made,
subject to receipt by the Company of prior approval from the OTS or such other
bank regulatory authority that is the primary holding company regulator of the
Company if then required under applicable capital guidelines or policies of the
OTS or such other bank regulatory authority that is the primary holding company
regulator of the Company, upon not less than 30 days' nor more than 60 days'
prior written notice. If the Debt Securities are only partially redeemed by the
Company, the Debt Securities will be redeemed pro rata or by any other method
utilized by the Indenture Trustee. In the event of redemption of this Debt
Security in part only, a new Debt Security or Debt Securities for the unredeemed
portion hereof will be issued in the name of the holder hereof upon the
cancellation hereof.
"Optional Redemption Price" means an amount in cash equal to 100% of
the principal amount of this Debt Security being redeemed plus unpaid interest
and Liquidated Damages, if any, accrued thereon to but excluding the related
Optional Redemption Date.
"Special Redemption Price" means, with respect to the redemption of any
Debt Security following a Special Event, an amount in cash equal to the
percentage of the principal amount of this Debt Security that is specified below
for the Special Redemption Date plus, in each case, unpaid interest and
Liquidated Damages, if any, accrued thereon to but excluding the Special
Redemption Date:
A-9
Special Redemption Price will be 103.5%
to but excluding April 15, 2005 and
thereafter will be as follows for the
12-month period beginning April 15, Percentage of Principal Amount
----------------------------------- ------------------------------
2005 102.8%
2006 102.1%
2007 101.4%
2008 100.7%
2009 and thereafter 100%
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Debt Securities may be
declared, and, in certain cases, shall IPSO FACTO become, due and payable, and
upon any such declaration of acceleration shall become, due and payable, in each
case, in the manner, with the effect and subject to the conditions provided in
the Indenture.
Subject to (i) the Company having received any required regulatory
approvals and (ii) the Administrators of Dime Community Capital Trust I having
received an Opinion of Counsel to the effect that such liquidation and
distribution will not cause the holders of Capital Securities to recognize gain
or loss for federal income tax purposes, the Company will have the right at any
time to liquidate the Trust and, after satisfaction of liabilities of creditors
of the Trust as required by applicable law, to cause the Debt Securities to be
distributed to the holders of the Trust Securities in liquidation of the Trust.
The Indenture contains provisions permitting the Company and the
Indenture Trustee, with the consent of the holders of a majority in aggregate
principal amount of the Debt Securities at the time outstanding affected
thereby, as specified in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Debt Securities;
PROVIDED, HOWEVER, that no such supplemental indenture shall, among other
things, without the consent of the holders of each Debt Security then
outstanding and affected thereby (i) change the Maturity Date of any Debt
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of interest thereon, or reduce
(other than as a result of the maturity or earlier redemption of any such Debt
Security in accordance with the terms of the Indenture and such Debt Security)
or increase the aggregate principal amount of Debt Securities then outstanding,
or change any of the redemption provisions, or make the principal thereof or any
interest or premium thereon payable in any coin or currency other than United
States Dollars, or impair or affect the right of any holder to institute suit
for payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities
the holders of which are required to consent to any such supplemental indenture.
The Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debt Securities at the time outstanding, on
behalf
A-10
of the holders of all the Debt Securities, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except (a) a default in
payments due in respect of any of the Debt Securities, (b) in respect of
covenants or provisions of the Indenture which cannot be modified or amended
without the consent of the holder of each Debt Security affected, or (c) in
respect of the covenants of the Company relating to its ownership of Common
Securities of the Trust. Any such consent or waiver by the holder of this Debt
Security (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this Debt
Security and of any Debt Security issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debt Security.
No reference herein to the Indenture and no provision of this Debt
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to make all payments due on this
Debt Security at the time and place and at the rate and in the money herein
prescribed.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, this Debt Security is transferable by the holder hereof
on the Debt Security Register (as defined in the Indenture) of the Company, upon
surrender of this Debt Security for registration of transfer at the office or
agency of the Indenture Trustee in Wilmington, Delaware, or at any other office
or agency of the Company in Wilmington, Delaware or New York, New York,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Indenture Trustee duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon one
or more new Debt Securities of authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such registration of
transfer, but the Company or the Indenture Trustee may require payment of a sum
sufficient to cover any tax, fee or other governmental charge payable in
relation thereto as specified in the Indenture.
Prior to due presentment for registration of transfer of this Debt
Security, the Company, the Indenture Trustee, any Authenticating Agent, any
Paying Agent, any transfer agent and the Debt Security registrar may deem and
treat the holder hereof as the absolute owner hereof (whether or not this Debt
Security shall be overdue and notwithstanding any notice of ownership or writing
hereon) for the purpose of receiving payment of the principal of and premium, if
any, and interest and Liquidated Damages, if any, on this Debt Security and for
all other purposes, and none of the Company, the Indenture Trustee, any
Authenticating Agent, any Paying Agent, any transfer agent or any Debt Security
registrar shall be affected by any notice to the contrary.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, Debt Securities are exchangeable for a like aggregate
principal amount of Debt Securities of different authorized denominations, as
requested by the holder surrendering the same.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest or Liquidated Damages, if any, on this Debt
Security or for any claim based hereon, or otherwise in respect hereof, or based
on or in respect of the Indenture, against any incorporator, stockholder,
officer, director, employee or agent, past, present or future, as such, of the
Company
A-11
or of any predecessor or successor corporation of the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
All terms used but not defined in this Debt Security shall have the
meanings assigned to them in the Indenture.
THIS DEBT SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
A-12
