<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 2, 1997
REGISTRATION NO. 333-24419
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C>
NORTH FORK BANCORPORATION, INC. NORTH FORK CAPITAL TRUST I
(EXACT NAME OF REGISTRANT AS SPECIFIED IN (EXACT NAME OF REGISTRANT AS SPECIFIED IN
ITS CHARTER) ITS TRUST AGREEMENT)
DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION)
6712 6719
(PRIMARY STANDARD INDUSTRIAL (PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER) CLASSIFICATION CODE NUMBER)
11-1353410 11-3355569
(I.R.S. EMPLOYER (I.R.S. EMPLOYER
IDENTIFICATION NO.) IDENTIFICATION NO.)
</TABLE>
275 BROAD HOLLOW ROAD
MELVILLE, NEW YORK 11747
(516) 844-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
<TABLE>
<S> <C>
JOHN A. KANAS DANIEL M. HEALY
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER EXECUTIVE VICE PRESIDENT
NORTH FORK BANCORPORATION, INC. AND CHIEF FINANCIAL OFFICER
275 BROAD HOLLOW ROAD NORTH FORK BANCORPORATION, INC.
MELVILLE, NEW YORK 11747 275 BROAD HOLLOW ROAD
(516) 844-1256 MELVILLE, NEW YORK 11747
(516) 844-1258
</TABLE>
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENTS FOR SERVICE)
COPIES TO:
VINCENT J. PISANO, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE(2)
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<S> <C> <C> <C> <C>
Exchange Capital Trust Pass-through Securities of
North Fork Capital Trust I......................... $100,000,000 100% $100,000,000 $30,303.03
- ----------------------------------------------------------------------------------------------------------------------------------
Exchange Junior Subordinated Debt Securities of North
Fork Bancorporation, Inc.(2).......................
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North Fork Bancorporation, Inc. Exchange Guarantee
with respect to Exchange Capital Trust Pass-through
Securities(3)......................................
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Total(4)............................................. $100,000,000(5) 100% $100,000,000(5) $30,303.03(6)
==================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) No separate consideration will be received for the Exchange Junior
Subordinated Debt Securities of North Fork Bancorporation, Inc. distributed
upon any liquidation of North Fork Capital Trust I.
(3) No separate consideration will be received for the North Fork
Bancorporation, Inc. Exchange Guarantee.
(4) This Registration Statement is deemed to cover rights of holders of Exchange
Junior Subordinated Debt Securities under the Indenture, the rights of
holders of Exchange Capital Trust Pass-through Securities of North Fork
Capital Trust I under an Amended and Restated Declaration of Trust, the
rights of holders of such Capital Securities under the Exchange Guarantee
and certain backup undertakings as described herein.
(5) Such amount represents the liquidation amount of the North Fork Capital
Trust I Exchange Capital Trust Pass-through Securities to be exchanged
hereunder and the principal amount of Exchange Junior Subordinated Debt
Securities that may be distributed to holders of such Capital Securities
upon any liquidation of North Fork Capital Trust I.
(6) Previously paid.
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
MAY 2, 1997
NORTH FORK CAPITAL TRUST I
OFFER TO EXCHANGE ITS
8.70% EXCHANGE CAPITAL TRUST PASS-THROUGH SECURITIES
(LIQUIDATION AMOUNT $1,000 PER EXCHANGE CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
8.70% ORIGINAL CAPITAL TRUST PASS-THROUGH SECURITIES
(LIQUIDATION AMOUNT $1,000 PER ORIGINAL CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
NORTH FORK BANCORPORATION, INC.
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON JUNE 3, 1997, UNLESS EXTENDED
- --------------------------------------------------------------------------------
North Fork Capital Trust I, a trust formed under the laws of the state of
Delaware (the "Trust"), hereby offers, upon the terms and subject to the
conditions set forth in this prospectus (as the same may be amended or
supplemented from time to time, the "Prospectus") and in the accompanying Letter
of Transmittal (which together constitute the "Exchange Offer"), to exchange up
to $100,000,000 aggregate liquidation amount of its 8.70% Exchange Capital Trust
Pass-through Securities (the "Exchange Capital Securities") which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a registration statement (as defined herein) of which this
Prospectus constitutes a part, for a like liquidation amount of its outstanding
8.70% Capital Trust Pass-through Securities (the "Original Capital Securities"),
of which $100,000,000 aggregate liquidation amount is outstanding. Pursuant to
the Exchange Offer, North Fork Bancorporation, Inc., a Delaware corporation (the
"Corporation" or "North Fork"), is also offering to exchange (i) its guarantee
of payments of cash distributions and payments on liquidation of the Trust or
redemption of the Original Capital Securities (the "Original Guarantee") for a
like guarantee in respect of the Exchange Capital Securities (the "Exchange
Guarantee") and (ii) $100,000,000 aggregate principal amount of its 8.70% Junior
Subordinated Debt Securities due December 15, 2026 (the "Original Junior
Subordinated Debt Securities") for a like aggregate principal amount of its
8.70% Exchange Junior Subordinated Debt Securities due December 15, 2026 (The
"Exchange Junior Subordinated Debt Securities"), which Exchange Guarantee and
Exchange Junior Subordinated Debt Securities also have been registered under the
Securities Act. The Original Capital Securities, the Original Guarantee and the
Original Junior Subordinated Debt Securities are collectively referred to herein
as the "Original Securities" and the Exchange Capital Securities, the Exchange
Guarantee and the Exchange Junior Subordinated Debt Securities are collectively
referred to herein as the "Exchange Securities."
The terms of the Exchange Securities are identical in all material respects
to the respective terms of the Original Securities, except that (1) the Exchange
Securities have been registered under the Securities Act and therefore will not
be subject to certain restrictions on transfer applicable to the Original
Securities, (2) the Exchange Capital Securities will not provide for any
increase in the distribution rate thereon and (3) the Exchange Junior
Subordinated Debt Securities will not provide for any liquidated damages
thereon. See "Description of Exchange Securities" and "Description of Original
Securities." The Exchange Capital Securities are being offered for exchange in
order to satisfy certain obligations of the Corporation and the Trust under the
Registration Agreement dated as of December 31, 1996 (the "Registration
Agreement") among the Corporation, the Trust and the Initial Purchasers (as
defined herein). In the event that the Exchange Offer is consummated, any
Original Capital Securities which remain outstanding after consummation of the
Exchange Offer and the Exchange Capital Securities issued in the Exchange Offer
will vote together as a single class for purposes of determining whether holders
of the requisite percentage in outstanding liquidation amount thereof have taken
certain actions or exercised certain rights under the declaration.
(Continued on the following page)
This Prospectus and the Letter of Transmittal are first being mailed to all
holders of Original Capital Securities on or about May 2, 1997.
SEE "RISK FACTORS" COMMENCING ON PAGE 16 FOR CERTAIN INFORMATION THAT
SHOULD BE CONSIDERED BY HOLDERS IN DECIDING WHETHER TO TENDER ORIGINAL CAPITAL
SECURITIES IN THE EXCHANGE OFFER.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is May 2, 1997.
<PAGE> 3
(Continued from the previous page)
The Exchange Capital Securities and the Original Capital Securities
(collectively, the "Capital Securities") represent beneficial interests in the
assets of the Trust. The Corporation is the owner of all of the beneficial
interests represented by common securities of the Trust (the "Common
Securities," and together with the Capital Securities, the "Trust Securities").
Bankers Trust Company is the Property Trustee of the Trust. The Trust exists for
the sole purpose of issuing the Trust Securities and investing the proceeds
thereof in the Junior Subordinated Debt Securities (as defined herein). The
Junior Subordinated Debt Securities will mature on December 15, 2026 (the
"Stated Maturity"). The Capital Securities will have a preference over the
Common Securities under certain circumstances with respect to cash distributions
and amounts payable on liquidation, redemption or otherwise. See "Description of
Exchange Securities -- Description of Exchange Capital
Securities -- Subordination of Common Securities."
As used herein, (i) the "Indenture" means the Indenture, dated as of
December 31, 1996, as amended and supplemented, between the Corporation and
Bankers Trust Company, as Debenture Trustee (the "Debenture Trustee"), and (ii)
the "Declaration" means the Amended and Restated Declaration of Trust relating
to the Trust among the Corporation, as Sponsor, Bankers Trust Company as
Property Trustee (the "Property Trustee"), Bankers Trust Company (Delaware) as
Delaware Trustee (the "Delaware Trustee"), and the Administrative Trustees named
therein (collectively, with the Property Trustee and Delaware Trustee, the
"Issuer Trustees"). In addition, as the context may require, (i) the term
"Junior Subordinated Debt Securities" includes the Original Junior Subordinated
Debt Securities and the Exchange Junior Subordinated Debt Securities and (ii)
the term "Guarantee" includes the Original Guarantee and the Exchange Guarantee.
Holders of the Trust Securities will be entitled to receive cumulative cash
distributions arising from the payment of interest on the Junior Subordinated
Debt Securities accruing from December 31, 1996 and payable semi-annually in
arrears on the 15th day of June and December of each year, commencing June 15,
1997, at the annual rate of 8.70% of the Liquidation Amount of $1,000 per
Exchange Capital Security and at the annual rate of 8.70% of the Liquidation
Amount of $1,000 per Exchange Common Security ("Distributions"). Subject to
certain exceptions, the Corporation has the right to defer payments of interest
on the Junior Subordinated Debt Securities at any time or from time to time for
a period not exceeding 10 consecutive semi-annual periods with respect to each
deferral period (each, an "Extension Period"); provided, however, that no
Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. Upon the termination of any Extension Period and
the payment of all interest then accrued and unpaid (together with interest
thereon at the rate of 8.70%, compounded semi-annually, to the extent permitted
by applicable law), the Corporation may elect to begin a new Extension Period,
subject to the requirements set forth herein. If interest payments on the Junior
Subordinated Debt Securities are so deferred, during any Extension Period,
Distributions on the Trust Securities will also be deferred and the Corporation
will not be permitted, subject to certain exceptions described herein, to
declare or pay any cash distributions with respect to the Corporation's capital
stock (which includes common and preferred stock) or to make any payment with
respect to debt securities of the Corporation that rank pari passu in all
respects with or junior to the Junior Subordinated Debt Securities. During an
Extension Period, interest on the Junior Subordinated Debt Securities will
continue to accrue (and the amount of Distributions to which holders of the
Trust Securities are entitled will accumulate) at the rate of 8.70% per annum,
compounded semi-annually, and holders of Trust Securities will be required to
accrue interest income for United States Federal income tax purposes. See
"Description of Exchange Securities -- Description of Exchange Junior
Subordinated Debt Securities -- Option to Extend Interest Payment Date" and
"Certain United States Federal Income Tax Consequences -- Interest Income and
Original Issue Discount."
The Corporation has, through the Guarantee, the Declaration, the Junior
Subordinated Debt Securities and the Indenture (each as defined herein), taken
together, fully, irrevocably and unconditionally guaranteed, as described
herein, all of the Trust's obligations under the Capital Securities. See
"Relationship Among the Exchange Capital Securities, the Exchange Junior
Subordinated Debt Securities and the Exchange Guarantee -- Full and
Unconditional Guarantee." Pursuant to the Exchange Guarantee, the Corporation
will guarantee the payment of Distributions and payments on liquidation or
redemption of the Exchange Capital
2
<PAGE> 4
(Continued from the previous page)
Securities, but only in each case to the extent of funds held by the Trust, as
described herein. See "Description of Exchange Securities -- Description of
Exchange Guarantee." If the Corporation does not make interest payments on the
Junior Subordinated Debt Securities held by the Trust, the Trust will have
insufficient funds to pay Distributions on the Capital Securities. The Guarantee
does not cover the payment of Distributions when the Trust does not have
sufficient funds to pay such Distributions. In such event, a holder of Capital
Securities may institute a legal proceeding directly against the Corporation for
enforcement of payment to such holder of the principal of or interest on Junior
Subordinated Debt Securities having a principal amount equal to the aggregate
Liquidation Amount of the Capital Securities held by such holder (a "Direct
Action"). See "Description of Exchange Securities -- Description of Exchange
Junior Subordinated Debt Securities -- Enforcement of Certain Rights by Holders
of Exchange Capital Securities." The obligations of the Corporation under the
Guarantee and the Junior Subordinated Debt Securities are subordinate and junior
in right of payment to all Senior Debt (as defined in "Description of Exchange
Securities -- Description of Exchange Junior Subordinated Debt
Securities -- Subordination") of the Corporation. In addition, because the
Corporation is a holding company, the Junior Subordinated Debt Securities and
the Guarantee are effectively subordinated to all existing and future
liabilities of the Corporation's subsidiaries, including deposits.
The Trust Securities will be subject to mandatory redemption (i) in whole,
but not in part, at the Stated Maturity of the Junior Subordinated Debt
Securities upon the redemption thereof at a redemption price equal to the
principal amount of, plus accrued interest on, the Junior Subordinated Debt
Securities (the "Maturity Redemption Price"), (ii) in whole, but not in part, at
any time prior to December 15, 2006, contemporaneously with the optional
redemption of the Junior Subordinated Debt Securities, upon the occurrence and
continuation of a Special Event (as defined herein) at a redemption price equal
to the Special Event Prepayment Price (as defined herein) (the "Special Event
Redemption Price"), and (iii) in whole or in part on or after December 15, 2006
contemporaneously with any optional redemption by the Corporation of Junior
Subordinated Debt Securities at a redemption price (the "Optional Redemption
Price") equal to the Optional Prepayment Price (as defined below). Any of the
Maturity Redemption Price, the Special Event Redemption Price or the Optional
Redemption Price may be referred to herein as the "Redemption Price." See
"Description of Exchange Securities -- Description of Exchange Capital
Securities -- Mandatory Redemption." Subject to the Corporation having received
prior approval of the Board of Governors of the Federal Reserve System (the
"Federal Reserve") to do so if then required under applicable capital guidelines
or policies of the Federal Reserve, the Junior Subordinated Debt Securities are
redeemable prior to the Stated Maturity (i) at the option of the Corporation on
or after December 15, 2006, in whole or in part at any time at a redemption
price (the "Optional Prepayment Price") equal to 104.17% of the principal amount
thereof on December 15, 2006 declining ratably on each December 15 thereafter to
100% on or after December 15, 2016, plus accrued and unpaid interest thereon to
the date of redemption or (ii) at any time prior to December 15, 2006, in whole
but not in part, upon the occurrence and continuation of a Special Event, at a
redemption price (the "Special Event Prepayment Price" equal to the greater of
(a) 100% of the principal amount thereof or (b) the sum, as determined by a
Quotation Agent (as defined herein), of the present values of the principal
amount and premium payable as part of the prepayment price with respect to an
optional redemption of such Junior Subordinated Debt Securities on December 15,
2006, together with scheduled payments of interest accruing from the redemption
date to December 15, 2006, in each case, discounted to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate (as defined herein), plus accrued but unpaid
interest thereon to the date of redemption. See "Description of Exchange
Securities -- Description of Exchange Junior Subordinated Debt
Securities -- Optional Redemption" and "-- Special Event Prepayment."
The Corporation, as the holder of the outstanding Common Securities, has
the right at any time (including, without limitation, upon the occurrence of a
Tax Event (as defined herein)) to terminate the Trust and cause a Like Amount
(as defined herein) of the Junior Subordinated Debt Securities to be distributed
to the holders of the Trust Securities upon liquidation of the Trust, subject to
prior approval of the Federal Reserve to do so if then required under applicable
capital guidelines or policies of the Federal Reserve. In the
3
<PAGE> 5
(Continued from the previous page)
event of such termination of the Trust, after satisfaction of liabilities to
creditors of the Trust as required by applicable law, the holders of the Capital
Securities generally will be entitled to receive a Liquidation Amount of $1,000
per Capital Security plus accumulated and unpaid Distributions thereon to the
date of payment, which shall be in the form of a distribution of a Like Amount
of Junior Subordinated Debt Securities, subject to certain exceptions. See
"Description of Exchange Securities -- Description of Exchange Capital
Securities -- Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities."
The Capital Securities, including the Exchange Capital Securities when
issued, may be transferred only in a block having a Liquidation Value of not
less than $100,000 (100 Capital Securities).
------------------------
The Trust is making the Exchange Offer of the Exchange Capital Securities
in reliance on the position of the staff of the Division of Corporation Finance
of the Securities and Exchange Commission (the "Commission") as set forth in
certain interpretive letters addressed to third parties in other transactions.
However, neither the Corporation nor the Trust has sought its own interpretive
letter and there can be no assurance that the staff of the Division of
Corporation Finance of the Commission would make a similar determination with
respect to the Exchange Offer as it has in such interpretive letters to third
parties. Based on these interpretations by the staff of the Division of
Corporation Finance of the Commission, and subject to the two immediately
following sentences, the Corporation and the Trust believe that Exchange Capital
Securities issued pursuant to this Exchange Offer in exchange for Original
Capital Securities may be offered for resale, resold and otherwise transferred
by a holder thereof (other than a holder who is a broker-dealer) without further
compliance with the registration and prospectus delivery requirements of the
Securities Act, provided that such Exchange Capital Securities are acquired in
the ordinary course of such holder's business and that such holder is not
participating, and has no arrangement or understanding with any person to
participate, in a distribution (within the meaning of the Securities Act) of
such Exchange Capital Securities. However, any holder of Original Capital
Securities who is an "affiliate" of the Corporation or the Trust or who intends
to participate in the Exchange Offer for the purpose of distributing Exchange
Capital Securities, or any broker-dealer who purchased Original Capital
Securities from the Trust to resell pursuant to Rule 144A under the Securities
Act ("Rule 144A") or any other available exemption under the Securities Act, (a)
will not be able to rely on the interpretations of the staff of the Division of
Corporation Finance of the Commission set forth in the above-mentioned
interpretive letters, (b) will not be permitted or entitled to tender such
Original Capital Securities in the Exchange Offer and (c) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any sale or other transfer of such Original Capital Securities
unless such sale is made pursuant to an exemption from such requirements. In
addition, as described below, if any broker-dealer holds Original Capital
Securities acquired for its own account as a result of market-making or other
trading activities and exchanges such Original Capital Securities for Exchange
Capital Securities, then such broker-dealer must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resales of such
Exchange Capital Securities.
Each holder of Original Capital Securities who wishes to exchange Original
Capital Securities for Exchange Capital Securities in the Exchange Offer will be
required to represent that (i) it is not an "affiliate" of the Corporation or
the Trust, (ii) any Exchange Capital Securities to be received by it are being
acquired in the ordinary course of its business, (iii) it has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such Exchange Capital Securities, and (iv) if
such holder is not a broker-dealer, such holder is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the Securities Act)
of such Exchange Capital Securities. In addition, the Corporation and the Trust
may require such holder, as a condition to such holder's eligibility to
participate in the Exchange Offer, to furnish to the Corporation and the Trust
(or an agent thereof) in writing information as to the number of "beneficial
owners" (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) on behalf of whom such holder holds the Capital Securities to
be exchanged in the Exchange Offer. Each broker-dealer that receives Exchange
Capital Securities for its own account pursuant to the Exchange Offer must
acknowledge that it acquired the Original Capital Securities for its own account
as the result of market-making activities or other trading activities and must
agree that it will deliver a prospectus
4
<PAGE> 6
(Continued from the previous page)
meeting the requirements of the Securities Act in connection with any resale of
such Exchange Capital Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
Based on the position taken by the staff of the Division of Corporation Finance
of the Commission in the interpretive letters referred to above, the Corporation
and the Trust believe that broker-dealers who acquired Original Capital
Securities for their own accounts, as a result of market-making activities or
other trading activities ("Participating Broker-Dealers"), may fulfill their
prospectus delivery requirements with respect to the Exchange Capital Securities
received upon exchange of such Original Capital Securities (other than Original
Capital Securities which represent an unsold allotment from the initial sale of
the Original Capital Securities) with a prospectus meeting the requirements of
the Securities Act, which may be the prospectus prepared for an exchange offer
so long as it contains a description of the plan of distribution with respect to
the resale of such Exchange Capital Securities. Each broker-dealer that receives
Exchange Capital Securities for its own account pursuant to the Exchange Offer
must acknowledge that it will deliver a prospectus in connection with any resale
of such Exchange Capital Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a Prospectus, a broker-dealer will not be deemed
to admit that it is an underwriter within the meaning of the Securities Act.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Capital
Securities received in exchange for Original Capital Securities acquired by such
broker-dealer securities as a result of market-making activities or other
trading activities. The Trust and the Corporation have agreed that, ending on
the close of business on the 180th day following the Expiration Date (as
described herein), it will make this Prospectus available to any broker-dealer
for use in connection with any such resale. See "Plan of Distribution." However,
a Participating Broker-Dealer who intends to use this Prospectus in connection
with the resale of Exchange Capital Securities received in exchange for Original
Capital Securities pursuant to the Exchange Offer must notify the Corporation or
the Trust, or cause the Corporation or the Trust to be notified, on or prior to
the Expiration Date, that it is a Participating Broker-Dealer. Such notice may
be given in the space provided for that purpose in the Letter of Transmittal or
may be delivered to the Exchange Agent at one of the addresses set forth herein
under "The Exchange Offer -- Exchange Agent." Any Participating Broker-Dealer
who is an "affiliate" of the Corporation or the Trust may not rely on such
interpretive letters and must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale
transaction. See "The Exchange Offer -- Resales of Exchange Capital Securities."
In that regard, each Participating Broker-Dealer who surrenders Original
Capital Securities pursuant to the Exchange Offer will be deemed to have agreed,
by execution of the Letter of Transmittal, that upon receipt of notice from the
Corporation or the Trust of the occurrence of any event or the discovery of any
fact which makes any statement contained or incorporated by reference in this
Prospectus untrue in any material respect or which causes this Prospectus to
omit to state a material fact necessary in order to make the statements
contained or incorporated by reference herein, in light of the circumstances
under which they were made, not misleading or of the occurrence of certain other
events specified in the Registration Agreement, such Participating Broker-Dealer
will suspend the sale of Exchange Capital Securities (or the Exchange Guarantee
or the Exchange Junior Subordinated Debt Securities, as applicable) pursuant to
this Prospectus until the Corporation or the Trust has amended or supplemented
this Prospectus to correct such misstatement or omission and has furnished
copies of the amended or supplemented Prospectus to such Participating
Broker-Dealer, or the Corporation or the Trust has given notice that the sale of
the Exchange Capital Securities (or the Exchange Guarantee or the Exchange
Junior Subordinated Debt Securities, as applicable) may be resumed, as the case
may be. If the Corporation or the Trust gives such notice to suspend the sale of
the Exchange Capital Securities (or the Exchange Guarantee or the Exchange
Junior Subordinated Debt Securities, as applicable), it shall extend the 180-day
period referred to above during which Participating Broker-Dealers are entitled
to use this Prospectus in connection with the resale of Exchange Capital
Securities by the number of days during the period from and including the date
of the giving of such notice to and including the date when Participating
Broker-Dealers shall have received copies of the amended or supplemented
Prospectus necessary to permit resales of the Exchange Capital Securities or to
and including the date on which the Corporation or the Trust has given notice
that the sale of Exchange Capital Securities
5
<PAGE> 7
(Continued from the previous page)
(or the Exchange Guarantee or the Exchange Junior Subordinated Debt Securities,
as applicable) may be resumed, as the case may be.
Prior to the Exchange Offer, there has been only a limited secondary market
and no public market for the Original Capital Securities. The Exchange Capital
Securities will be a new issue of securities for which there currently is no
market. Although the Initial Purchasers have informed the Corporation and the
Trust that they each currently intend to make a market in the Exchange Capital
Securities, they are not obligated to do so, and any such market making may be
discontinued at any time without notice. Accordingly, there can be no assurance
as to the development or liquidity of any market for the Exchange Capital
Securities. The Corporation and the Trust currently do not intend to apply for
listing of the Exchange Capital Securities on any securities exchange or for
quotation through the National Association of Securities Dealers Automated
Quotation System.
Any Original Capital Securities not tendered and accepted in the Exchange
Offer will remain outstanding and will be entitled to all the same rights and
will be subject to the same limitations applicable thereto under the Declaration
(except for those rights which terminate upon consummation of the Exchange
Offer). Following consummation of the Exchange Offer, the holders of Original
Capital Securities will continue to be subject to all of the existing
restrictions upon transfer thereof and neither the Corporation nor the Trust
will have any further obligation to such holders (other than under certain
limited circumstances) to provide for registration under the Securities Act of
the Original Capital Securities held by them. To the extent that Original
Capital Securities are tendered and accepted in the Exchange Offer, a holder's
ability to sell untendered Original Capital Securities could be adversely
affected. See "Risk Factors -- Consequences of a Failure to Exchange Original
Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF ORIGINAL CAPITAL SECURITIES ARE URGED TO READ THIS
PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING
WHETHER TO TENDER THEIR ORIGINAL CAPITAL SECURITIES PURSUANT TO THE EXCHANGE
OFFER.
Original Capital Securities may be tendered for exchange on or prior to
5:00 p.m., New York City time, on June 3, 1997 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is extended
by the Corporation or the Trust (in which case the term "Expiration Date" shall
mean the latest date and time to which the Exchange Offer is extended). Tenders
of Original Capital Securities may be withdrawn at any time on or prior to the
Expiration Date. The Exchange Offer is not conditioned upon any minimum
Liquidation Amount of Original Capital Securities being tendered for exchange.
However, the Exchange Offer is subject to certain events and conditions which
may be waived by the Corporation or the Trust and to the terms and provisions of
the Registration Rights Agreement. Original Capital Securities may be tendered
in whole or in part having an aggregate Liquidation Amount of not less than
$100,000 (100 Capital Securities) or any integral multiple of $1,000 Liquidation
Amount (one Capital Security) in excess thereof. The Corporation as Issuer of
Junior Subordinated Debt Securities has agreed to pay all expenses of the
Exchange Offer. See "The Exchange Offer -- Fees and Expenses." Holders of the
Original Capital Securities whose Original Capital Securities are accepted for
exchange will not receive Distributions on such Original Capital Securities and
will be deemed to have waived the right to receive any Distributions on such
Original Capital Securities accumulated from and after December 31, 1996. See
"The Exchange Offer -- Distributions on Exchange Capital Securities."
Neither the Corporation nor the Trust will receive any cash proceeds from
the issuance of the Exchange Capital Securities offered hereby. No
dealer-manager is being used in connection with this Exchange Offer. See "Use of
Proceeds" and "Plan of Distribution."
6
<PAGE> 8
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THIS EXCHANGE
OFFER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR THE TRUST. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE CORPORATION OR THE TRUST SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER OR A SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR ANYONE TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................................................................. 7
Incorporation of Certain Documents by Reference....................................... 8
Summary............................................................................... 9
Risk Factors.......................................................................... 16
Ratios of Earnings to Fixed Charges................................................... 22
North Fork Capital Trust I............................................................ 23
North Fork............................................................................ 24
Selected Historical Financial Information............................................. 25
Capitalization........................................................................ 27
Accounting Treatment.................................................................. 28
The Exchange Offer.................................................................... 28
Description of Exchange Securities.................................................... 37
Description of Original Securities.................................................... 60
Relationship Among the Exchange Capital Securities, the Exchange Junior Subordinated
Debt Securities and the Exchange Guarantee.......................................... 61
Certain United States Federal Income Tax Consequences................................. 62
ERISA Considerations.................................................................. 66
Plan of Distribution.................................................................. 67
Validity of Exchange Securities....................................................... 68
Experts............................................................................... 68
</TABLE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities of the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional
offices of the Commission located at 7 World Trade Center, 13th Floor, Suite
1300, New York, New York 10048 and Suite 1400, Citicorp Center, 14th Floor, 500
West Madison Street, Chicago, Illinois 60661. Copies of such material can also
be obtained at prescribed rates by writing to the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Such
information may also be accessed electronically by means of the Commission's
home page on the Internet (http://www.sec.gov.). In addition, such reports,
proxy statements and other information concerning the Corporation can be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005, on which exchange certain securities of the
Corporation are listed.
No separate financial statements of the Trust have been included herein.
The Corporation and the Trust do not consider that such financial statements
would be material to holders of the Capital Securities because the Trust is a
newly formed special purpose entity, has no operating history or independent
operations and is
7
<PAGE> 9
not engaged in and does not propose to engage in any activity other than holding
as trust assets the Junior Subordinated Debt Securities and issuing the Trust
Securities. See "North Fork Capital Trust I" and "Description of Exchange
Securities." In addition, the Corporation does not expect that the Trust will
file reports under the Exchange Act with the Commission.
This Prospectus constitutes a part of a registration statement on Form S-4
(the "Registration Statement") filed by the Corporation and the Trust with the
Commission under the Securities Act. This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission, and
reference is hereby made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the Corporation, the
Trust and the Exchange Securities. Any statements contained herein concerning
the provisions of any document are not necessarily complete, and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following document filed by the Corporation with the Commission is
incorporated into this Prospectus by reference:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996; and
2. The Corporation's Current Reports on Form 8-K, filed with the
Commission on January 14, 1997, February 28, 1997, April 14, 1997 and April 22,
1997.
Each document or report subsequently filed by the Corporation pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the termination of the offering of the Exchange Securities offered
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be a part of this Prospectus from the date of filing of such document. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
As used herein, the terms "Prospectus" and "herein" mean this Prospectus
including the documents incorporated or deemed to be incorporated herein by
reference, as the same may be amended, supplemented or otherwise modified from
time to time. Statements contained in this Prospectus as to the contents of any
contract or other document referred to herein do not purport to be complete, and
where reference is made to the particular provisions of such contract or other
document, such provisions are qualified in all respects by reference to all of
the provisions of such contract or other document. The Corporation will provide
without charge to any person to whom this Prospectus is delivered, on the
written or oral request of such person, a copy of any or all of the foregoing
documents incorporated by reference herein (other than exhibits not specifically
incorporated by reference into the texts of such documents). Requests for such
documents should be directed to: Investor Relations, North Fork Bancorporation,
Inc., 275 Broad Hollow Road, Melville, NY 11747. Telephone requests may be
directed to Investor Relations at (516) 844-1259.
8
<PAGE> 10
SUMMARY
The following is a summary of certain information contained elsewhere in
this Prospectus. Reference is made to, and this summary is qualified in its
entirety by, the more detailed information and financial statements, including
the notes thereto, contained elsewhere in this Prospectus and in documents
incorporated by reference hereto.
NORTH FORK CAPITAL TRUST I
The Trust is a statutory business trust formed under Delaware law pursuant
to (i) the Declaration and (ii) the filing of a certificate of trust with the
Delaware Secretary of State on December 23, 1996. The Trust's business and
affairs are conducted by the Issuer Trustees: Bankers Trust, as Property
Trustee, Bankers Trust (Delaware), as Delaware Trustee, and two individual
Administrative Trustees who are employees or officers of or affiliated with the
Corporation. The Trust exists for the exclusive purposes of (i) issuing and
selling the Trust Securities, (ii) using the proceeds from the sale of the Trust
Securities to acquire the Junior Subordinated Debt Securities issued by the
Corporation and (iii) engaging in only those other activities necessary,
advisable or incidental thereto (such as registering the transfer of the Capital
Securities). The Junior Subordinated Debt Securities will be the sole assets of
the Trust, and payments under the Junior Subordinated Debt Securities will be
the sole revenues of the Trust. All of the Common Securities will be owned
directly or indirectly by the Corporation.
NORTH FORK
North Fork, with its executive headquarters located in Melville, New York,
is a bank holding company organized under the laws of the State of Delaware in
1980 and registered under the Bank Holding Company Act of 1956, as amended.
North Fork's primary subsidiary, North Fork Bank, operates 82 retail banking
facilities throughout Suffolk, Nassau, New York, Queens, Westchester and
Rockland Counties of New York. North Fork, through North Fork Bank, provides a
variety of banking and financial services to middle market and small business
organizations, local government units, and retail customers in the metropolitan
New York area. On December 31, 1996, North Side Savings Bank ("North Side")
merged (the "Merger") with and into North Fork Bank, with North Fork Bank
surviving the merger as a wholly owned subsidiary of North Fork. North Side had
$1.6 billion in total assets, $1.2 billion in deposit liabilities, $124.4
million in capital and operated seventeen full-service banking locations in the
New York counties of Bronx, Queens, Nassau and Suffolk. North Fork issued 7.5
million shares of common stack in connection with this merger, which was
accounted for under the pooling-of-interests method of accounting, and
accordingly, the Registrant's consolidated financial statements include the
consolidated results of North Side. Immediately after the Merger, North Fork had
total assets and deposits of $5.8 billion and $4.5 billion, respectively. The
principal executive offices of North Fork are located a 275 Broad Hollow Road,
Melville, New York 11747 and its telephone number is (516) 844-1000.
Acquisitions and Mergers have been, and are expected to continue to be, an
important part of the expansion of the Corporation's business. During the first
quarter of 1996, North Fork Bank consummated the acquisition of the domestic
commercial banking business of Extebank, which at closing had approximately $388
million in total assets and $348 million in deposit liabilities and $30 million
in capital, for $47 million in cash. During such quarter, North Fork Bank also
consummated the acquisition of ten Long Island branches of First Nationwide
Bank, with approximately $572 million in deposits, at a deposit premium of
6.35%, for $36 million in cash.
At December 31, 1996, North Fork had total assets of $5.8 billion, deposit
liabilities of $4.5 billion and stockholders' equity of $457.5 million. On
December 20, 1996, the Corporation completed the public offering of 600,000
shares of its common stock held in treasury, for which it received aggregate
proceeds of approximately $19.7 million.
North Fork is a legal entity separate and distinct from its subsidiaries.
The ability of holders of debt and equity securities of North Fork to benefit
from the distribution of assets of any subsidiary upon the liquidation
9
<PAGE> 11
or reorganization of such subsidiary is subordinate to prior claims of creditors
of the subsidiary (including depositors in the case of banking subsidiaries)
except to the extent that a claim of North Fork as a creditor may be recognized.
In addition, there are regulatory limitations on the payment of dividends
directly or indirectly to North Fork from its existing banking subsidiary. Under
applicable banking statutes, at January 1, 1997, North Fork's banking subsidiary
could have declared additional dividends of approximately $55.6 million.
However, Federal and state regulatory agencies also have the authority to limit
further North Fork's banking subsidiary's payment of dividends based on other
factors, such as the maintenance of adequate capital for such subsidiary bank,
which could reduce the amount of dividends otherwise payable.
Under the policy of the Federal Reserve, North Fork is expected to act as a
source of financial strength to each subsidiary bank and to commit resources to
support such subsidiary bank in circumstances where North Fork might not do so
absent such policy. In addition, any subordinated loans by North Fork to any
subsidiary bank would also be subordinate in right of payment to deposits and
obligations to general creditors of such subsidiary bank.
THE EXCHANGE OFFER
The Exchange Offer......... Up to $100,000,000 aggregate Liquidation Amount of
Exchange Capital Securities are being offered in
exchange for a like aggregate Liquidation Amount of
Original Capital Securities. Original Capital
Securities may be tendered for exchange in whole or
in part in a Liquidation Amount of $100,000 (100
Capital Securities) or any integral multiple of
$1,000 (one Capital Security) in excess thereof.
The Corporation and the Trust are making the
Exchange Offer in order to satisfy their
obligations under the Registration Agreement
relating to the Original Capital Securities. For a
description of the procedures for tendering
Original Capital Securities, see "The Exchange
Offer -- Procedures for Tendering Original Capital
Securities."
Expiration Date............ 5:00 p.m., New York City time, on June 3, 1997,
unless the Exchange Offer is extended by the
Corporation or the Trust (in which case the
Expiration Date will be the latest date and time to
which the Exchange Offer is extended). See "The
Exchange Offer -- Terms of the Exchange Offer."
Conditions to the
Exchange Offer........... The Exchange Offer is subject to certain
conditions, which may be waived by the Corporation
and the Trust in their sole discretion. The
Exchange Offer is not conditioned upon any minimum
Liquidation Amount of Original Capital Securities
being tendered. See "The Exchange
Offer -- Conditions to the Exchange Offer."
Terms of the Exchange
Offer...................... The Corporation and the Trust reserve the right in
their sole and absolute discretion, subject to
applicable law, at any time and from time to time,
(i) to delay the acceptance of the Original Capital
Securities for exchange, (ii) to terminate the
Exchange Offer if certain specified conditions have
not been satisfied, (iii) to extend the Expiration
Date of the Exchange Offer and retain all Original
Capital Securities tendered pursuant to the
Exchange Offer, subject, however, to the right of
holders of Original Capital Securities to withdraw
their tendered Original Capital Securities, or (iv)
to waive any condition or otherwise amend the terms
of the Exchange Offer in any respect. See "The
Exchange Offer -- Terms of the Exchange Offer."
10
<PAGE> 12
Withdrawal Rights.......... Tenders of Original Capital Securities may be
withdrawn at any time on or prior to the Expiration
Date by delivering a written notice of such
withdrawal to the Exchange Agent in conformity with
certain procedures set forth below under "The
Exchange Offer -- Withdrawal Rights."
Procedures for Tendering
Original Capital
Securities............... Certain brokers, dealers, commercial banks, trust
companies and other nominees who hold Original
Capital Securities through The Depository Trust
Company ("DTC") must effect tenders by book-entry
transfer through DTC's Automated Tender Offer
Program ("ATOP"). Beneficial owners of Original
Capital Securities registered in the name of a
broker, dealer, commercial bank, trust company or
other nominee are urged to contact such person
promptly if they wish to tender Original Capital
Securities pursuant to the Exchange Offer.
Tendering holders of Original Capital Securities
that do not use ATOP must complete and sign a
Letter of Transmittal in accordance with the
instructions contained therein and forward the same
by mail, facsimile or hand delivery, together with
any other required documents, to the Exchange
Agent, either with the certificates of the Original
Capital Securities to be tendered or in compliance
with the specified procedures for guaranteed
delivery of Original Capital Securities. Tendering
holders of Original Capital Securities that use
ATOP will, by so doing, acknowledge that they are
bound by the terms of the Letter of Transmittal.
See "The Exchange Offer -- Procedures for Tendering
Original Capital Securities."
Letters of Transmittal and certificates
representing Original Capital Securities should not
be sent to the Corporation or the Trust. Such
documents should only be sent to the Exchange
Agent.
Resales of Exchange Capital
Securities............... The Corporation and the Trust are making the
Exchange Offer in reliance on the position of the
staff of the Division of Corporation Finance of the
Commission as set forth in certain interpretive
letters addressed to third parties in other
transactions. However, neither the Corporation nor
the Trust has sought its own interpretive letter
and there can be no assurance that the staff of the
Division of Corporation Finance of the Commission
would make a similar determination with respect to
the Exchange Offer as it has in such interpretive
letters to third parties. Based on these
interpretations by the staff of the Division of
Corporation Finance of the Commission, and subject
to the two immediately following sentences, the
Corporation and the Trust believe that Exchange
Capital Securities issued pursuant to this Exchange
Offer in exchange for Original Capital Securities
may be offered for resale, resold and otherwise
transferred by a holder thereof (other than a
holder who is a broker-dealer) without further
compliance with the registration and prospectus
delivery requirements of the Securities Act,
provided that such Exchange Capital Securities are
acquired in the ordinary course of such holder's
business and that such holder is not participating,
and has no arrangement or understanding with any
person to participate, in a distribution (within
the meaning of the Securities Act) of such Exchange
Capital Securities. However, any holder of Original
Capital Securities who is an "affiliate" of the
Corporation or the Trust or who intends to
participate in the Exchange Offer for the purpose
of distribut-
11
<PAGE> 13
ing the Exchange Capital Securities, or any
broker-dealer who purchased the Original Capital
Securities from the Trust to resell pursuant to
Rule 144A or any other available exemption under
the Securities Act, (a) will not be able to rely on
the interpretations of the staff of the Division of
Corporation Finance of the Commission set forth in
the above-mentioned interpretive letters, (b) will
not be permitted or entitled to tender such
Original Capital Securities in the Exchange Offer
and (c) must comply with the registration and
prospectus delivery requirements of the Securities
Act in connection with any sale or other transfer
of such Original Capital Securities unless such
sale is made pursuant to an exemption from such
requirements. In addition, as described below, if
any broker-dealer holds Original Capital Securities
acquired for its own account as a result of
market-making or other trading activities and
exchanges such Original Capital Securities for
Exchange Capital Securities, then such
broker-dealer must deliver a prospectus meeting the
requirements of the Securities Act in connection
with any resales of such Exchange Capital
Securities.
Each holder of Original Capital Securities who
wishes to exchange Original Capital Securities for
Exchange Capital Securities in the Exchange Offer
will be required to represent that (i) it is not an
"affiliate" of the Corporation or the Trust, (ii)
any Exchange Capital Securities to be received by
it are being acquired in the ordinary course of its
business, (iii) it has no arrangement or
understanding with any person to participate in a
distribution (within the meaning of the Securities
Act) of such Exchange Capital Securities, and (iv)
if such holder is not a broker-dealer, such holder
is not engaged in, and does not intend to engage
in, a distribution (within the meaning of the
Securities Act) of such Exchange Capital
Securities. Each broker-dealer that receives
Exchange Capital Securities for its own account in
exchange for Original Capital Securities, where
such Original Capital Securities were acquired by
such broker-dealer as a result of market-making
activities or other trading activities, must
acknowledge that it will deliver a prospectus
meeting the requirements of the Securities Act in
connection with any resale of such Exchange Capital
Securities. The Letter of Transmittal states that,
by so acknowledging and by delivering such a
prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the
meaning of the Securities Act. Based on the
position taken by the staff of the Division of
Corporation Finance of the Commission in the
interpretive letters referred to above, the
Corporation and the Trust believe that
Participating Broker-Dealers who acquired Original
Capital Securities for their own accounts as a
result of market-making activities or other trading
activities may fulfill their prospectus delivery
requirements with respect to the Exchange Capital
Securities received upon exchange of such Original
Capital Securities (other than Original Capital
Securities which represent an unsold allotment from
the initial sale of the Original Capital
Securities) with a prospectus meeting the
requirements of the Securities Act, which may be
the prospectus prepared for an exchange offer so
long as it contains a description of the plan of
distribution with respect to the resale of such
Exchange Capital Securities. Accordingly, this
Prospectus, as it may be amended or supplemented
from time to time, may be used by a Participating
Broker-Dealer in connection with resales of
Exchange Capital Securities re-
12
<PAGE> 14
ceived in exchange for Original Capital Securities
where such Original Capital Securities were
acquired by such Participating Broker-Dealer for
its own account as a result of market-making or
other trading activities. Subject to certain
provisions set forth in the Registration Agreement
and to the limitations described below under "The
Exchange Offer -- Resales of Exchange Capital
Securities," the Corporation and the Trust have
agreed that this Prospectus, as it may be amended
or supplemented from time to time, may be used by a
Participating Broker-Dealer in connection with
resales of such Exchange Capital Securities for a
period ending 180 days after the Expiration Date
(subject to extension under certain limited
circumstances) or, if earlier, when all such
Exchange Capital Securities have been disposed of
by such Participating Broker-Dealer. See "Plan of
Distribution." Any Participating Broker-Dealer who
is an "affiliate" of the Corporation or the Trust
may not rely on such interpretive letters and must
comply with the registration and prospectus
delivery requirements of the Securities Act in
connection with any resale transaction. See "The
Exchange Offer -- Resales of Exchange Capital
Securities."
Exchange Agent............. The exchange agent with respect to the Exchange
Offer is Bankers Trust Company (the "Exchange
Agent"). The addresses, and telephone and facsimile
numbers, of the Exchange Agent are set forth in
"The Exchange Offer -- Exchange Agent" and in the
Letter of Transmittal.
Use of Proceeds............ Neither the Corporation nor the Trust will receive
any cash proceeds from the issuance of the Exchange
Capital Securities offered hereby.
Certain United States
Federal Income Tax
Consequences; ERISA
Considerations........... Holders of Original Capital Securities should
review the information set forth under "Certain
United States Federal Income Tax Consequences" and
"ERISA Considerations" prior to tendering Original
Capital Securities in the Exchange Offer.
THE EXCHANGE CAPITAL SECURITIES
Securities Offered......... Up to $100,000,000 aggregate Liquidation Amount of
the Trust's Exchange Capital Securities which have
been registered under the Securities Act
(Liquidation Amount $1,000 per Exchange Capital
Security). The Exchange Capital Securities will be
issued and the Original Capital Securities were
issued under the Declaration. The Exchange Capital
Securities and any Original Capital Securities
which remain outstanding after consummation of the
Exchange Offer will vote together as a single class
for purposes of determining whether holders of the
requisite percentage in outstanding Liquidation
Amount thereof have taken certain actions or
exercised certain rights under the Declaration. See
"Description of Exchange Securities -- Description
of Exchange Capital Securities -- Voting Rights;
Amendment of the Declaration." The terms of the
Exchange Capital Securities are identical in all
material respects to the terms of the Original
Capital Securities, except that the Exchange
Capital Securities have been registered under the
Securities Act, will not be subject to the certain
restrictions on transfer applicable to the Original
Capital Securities and will not provide for any
increase in the Distribution rate thereon. See "The
Exchange Offer -- Purpose of the Exchange
13
<PAGE> 15
Offer," "Description of Exchange Securities" and
"Description of Original Securities."
Distribution Dates......... June 15 and December 15 of each year, commencing
June 15, 1997.
Extension Periods.......... Distributions on the Exchange Capital Securities
will be deferred for the duration of any Extension
Period elected by the Corporation with respect to
the payment of interest on the Exchange Junior
Subordinated Debt Securities. No Extension Period
will exceed 10 consecutive semi-annual periods or
extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. See "Description of
Exchange Securities -- Description of Exchange
Junior Subordinated Debt Securities -- Option to
Extend Interest Payment Date" and "Certain United
States Federal Income Tax Consequences -- Interest
Income and Original Issue Discount."
Ranking.................... The Exchange Capital Securities will rank pari
passu, and payments thereon will be made pro rata,
with the Original Capital Securities and the Common
Securities except as described under "Description
of Exchange Securities -- Description of Exchange
Capital Securities -- Subordination of Common
Securities." The Exchange Junior Subordinated Debt
Securities will rank pari passu with the Original
Junior Subordinated Debt Securities all other
junior subordinated debt securities to be issued by
the Corporation pursuant to the Indenture with
substantially similar subordination terms ("Other
Debentures"), and which will be issued and sold to
other trusts to be established by the Corporation
in each case similar to the Trust ("Other Trusts"),
and will be unsecured and subordinate and junior in
right of payment to the extent and in the manner
set forth in the Indenture to all Senior Debt of
the Corporation. See "Description of Exchange
Securities -- Description of Exchange Junior
Subordinated Debt Securities." The Exchange
Guarantee will rank pari passu with the Original
Guarantee and all other guarantees to be issued by
the Corporation with respect to capital securities
to be issued by Other Trusts ("Other Guarantees"),
and will constitute an unsecured obligation of the
Corporation and will rank subordinate and junior in
right of payment to the extent and in the manner
set forth in the Guarantee to all Senior Debt. See
"Description of Exchange Securities -- Description
of Exchange Guarantee." In addition, because the
Corporation is a holding company, the Junior
Subordinated Debt Securities and the Guarantee are
effectively subordinated to all existing and future
liabilities of the Corporation's subsidiaries,
including deposits.
Redemption................. The Trust Securities are subject to mandatory
redemption (i) in whole, but not in part, at the
Stated Maturity of the Junior Subordinated Debt
Securities upon the redemption thereof, (ii) in
whole, but not in part, at any time prior to
December 15, 2006, contemporaneously with the
optional redemption of the Junior Subordinated Debt
Securities upon the occurrence and continuation of
a Special Event (as defined herein) and (iii) in
whole or in part at any time on or after December
15, 2006 contemporaneously with any optional
redemption by the Corporation of Junior
Subordinated Debt Securities, in each case at the
applicable Redemption Price. See "Description of
Exchange Securities -- Description of Exchange
Capital Securities -- Mandatory Redemption."
14
<PAGE> 16
Rating..................... The Exchange Capital Securities are expected to be
rated "BB+" by Standard & Poor's Ratings Services
and "baa3" by Moody's Investors Service, Inc. A
security rating is not a recommendation to buy,
sell or hold securities and may be subject to
revision or withdrawal at any time by the assigning
rating organization.
Transfer Restrictions...... The Exchange Capital Securities will be issued, and
may be transferred, only in blocks having a
Liquidation Amount of not less than $100,000 (100
Capital Securities).
ERISA Considerations....... Prospective purchasers must carefully consider the
restrictions on purchase set forth under "ERISA
Considerations."
Absence of Market for the
Exchange Capital
Securities............... The Exchange Capital Securities will be a new issue
of securities for which there currently is no
market. Although Salomon Brothers Inc and Keefe,
Bruyette & Woods, Inc., the initial purchasers of
the Original Capital Securities (the "Initial
Purchasers"), have informed the Corporation and the
Trust that they each currently intend to make a
market in the Exchange Capital Securities, they are
not obligated to do so, and any such market making
may be discontinued at any time without notice.
Accordingly, there can be no assurance as to the
development or liquidity of any market for the
Exchange Capital Securities. The Trust and the
Corporation do not intend to apply for listing of
the Exchange Capital Securities on any securities
exchange or for quotation through the National
Association of Securities Dealers Automated
Quotation System ("NASDAQ"). See "Plan of
Distribution."
RISK FACTORS
Prospective investors should carefully consider the matters set forth under
"Risk Factors."
15
<PAGE> 17
RISK FACTORS
Prospective investors should consider carefully, in addition to the other
information contained in this Prospectus, the following factors in connection
with the Exchange Offer and the Exchange Capital Securities offered hereby. This
Prospectus contains certain forward-looking statements and information relating
to the Corporation that are based on the beliefs of management as well as
assumptions made by and information currently available to management. The words
"anticipate," "believe," "estimate," "expect," "intends" and similar
expressions, as they relate to the Corporation or the Corporation's management,
are intended to identify forward-looking statements. Such statements reflect the
current views of the Corporation with respect to future events and are subject
to certain risks, uncertainties and assumptions, including the risk factors
described in this Prospectus. Should one or more of these risks or uncertainties
materialize, or should underlying assumptions prove incorrect, actual results
may vary materially from those described herein as anticipated, believed,
estimated or expected. The Corporation does not intend to update these
forward-looking statements.
RANKING OF OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED DEBT
SECURITIES
The obligations of the Corporation under the Guarantee issued by the
Corporation for the benefit of the holders of Capital Securities and under the
Junior Subordinated Debt Securities are unsecured and rank subordinate and
junior in right of payment to all Senior Debt of the Corporation. At December
31, 1996, the aggregate outstanding Senior Debt of the Corporation (which, as
defined, includes all outstanding subordinated debt of the Corporation) was
approximately $25 million. Upon the issuance of the Junior Subordinated Debt
Securities, the Corporation will not have any indebtedness that ranks pari passu
with or junior to its obligations under the Guarantee and the Junior
Subordinated Debt Securities. Because the Corporation is a bank holding company,
the right of the Corporation to participate in any distribution of assets of any
subsidiary, including North Fork Bank, upon such subsidiary's liquidation or
reorganization or otherwise (and thus the ability of holders of the Capital
Securities to benefit indirectly from such distribution), is subject to the
prior claims of creditors of such subsidiary, except to the extent that the
Corporation may itself be recognized as a creditor of such subsidiary.
Accordingly, the Junior Subordinated Debt Securities will be effectively
subordinated to all existing and future liabilities of the Corporation's
subsidiaries, and holders of Junior Subordinated Debt Securities should look
only to the assets of the Corporation for payments on the Junior Subordinated
Debt Securities. Because the Corporation is a holding company with limited
assets and liabilities, a substantial portion of the consolidated liabilities of
the Corporation are liabilities of its subsidiaries. The Guarantee will
constitute an unsecured obligation of the Corporation and will rank subordinate
and junior in right of payment to all Senior Debt in the same manner as the
Junior Subordinated Debt Securities. See "North Fork." None of the Indenture,
the Guarantee or the Declaration places any limitation on the amount of secured
or unsecured debt, including Senior Debt, that may be incurred by the
Corporation or any subsidiary. See "Description of Exchange
Securities -- Description of Exchange Junior Subordinated Debt
Securities -- Subordination" and "-- Description of Exchange Guarantee -- Status
of the Guarantee."
The ability of the Trust to pay amounts due on the Capital Securities is
solely dependent upon the Corporation making payments on the Junior Subordinated
Debt Securities as and when required.
OPTION TO EXTEND INTEREST PAYMENT DATE; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES
So long as no Debenture Event of Default (as defined herein) has occurred
and is continuing, the Corporation has the right under the Indenture to defer
the payment of interest on the Junior Subordinated Debt Securities at any time
or from time to time for a period not exceeding 10 consecutive semi-annual
periods with respect to each Extension Period; provided, however, that no
Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. As a consequence of any such deferral, semi-annual
Distributions on the Trust Securities by the Trust will also be deferred (and
the amount of Distributions to which holders of the Trust Securities are
entitled will accumulate additional Distributions thereon at the rate of 8.70%
per annum, compounded semi-annually) from the relevant payment date for such
Distributions during any such Extension Period. During any Extension Period, the
Corporation may not
16
<PAGE> 18
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Corporation's
capital stock (which includes common and preferred stock), (ii) make any payment
of principal, interest or premium, if any, on, or repay, repurchase or redeem
any debt securities of the Corporation (including Other Debentures) that rank
pari passu with or junior in interest to, the Junior Subordinated Debt
Securities or (iii) make any guarantee payments with respect to any guarantee by
the Corporation of the debt securities of any subsidiary of the Corporation
(including Other Guarantees) if such guarantee ranks pari passu with or junior
in interest to the Junior Subordinated Debt Securities (other than (a) dividends
or distributions in common stock of the Corporation, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the
Guarantee, (d) purchases or acquisitions of shares of the Corporation's common
stock in connection with the satisfaction by the Corporation of its obligations
under any employee benefit plan or any other contractual obligation of the
Corporation (other than a contractual obligation ranking pari passu with or
junior to the Junior Subordinated Debt Securities), (e) as a result of a
reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock for another
class or series of the Corporation's capital stock or (f) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged). Prior to the termination of any Extension Period,
the Corporation may further extend such Extension Period; provided, however,
that such extension does not cause such Extension Period to exceed 10
consecutive semi-annual periods or to extend beyond the Stated Maturity. Upon
the termination of any Extension Period and the payment of all interest then
accrued and unpaid on the Junior Subordinated Debt Securities (together with
interest thereon at the annual rate of 8.70%, compounded semi-annually, to the
extent permitted by applicable law), the Corporation may elect to begin a new
Extension Period, subject to the above requirements. There is no limitation on
the number of times that the Corporation may elect to begin an Extension Period.
See "Description of Exchange Securities -- Description of Exchange Capital
Securities -- Distributions" and "-- Description of Exchange Junior Subordinated
Debt Securities -- Option to Extend Interest Payment Date."
Because the Corporation believes that the likelihood of its exercising its
option to defer payments of interest is remote, the Junior Subordinated Debt
Securities will be treated under Treasury regulations as issued without original
issue discount ("OID") for United States federal income tax purposes. As a
result, holders of Capital Securities generally will include their allocable
share of the interest on the Junior Subordinated Debt Securities in taxable
income under their own methods of tax accounting (i.e., cash or accrual). Under
the Treasury regulations, however, if the Corporation exercises its right to
defer payments of interest, the Junior Subordinated Debt Securities will become
OID instruments. Consequently, holders of Capital Securities will be required to
include their pro rata share of OID in gross income as it accrues for United
States federal income tax purposes in advance of the receipt of cash
attributable to such interest income and such holders will not receive the cash
related to such income if they dispose of the Capital Securities prior to the
record date for payment of distributions thereafter. See "Certain United States
Federal Income Tax Consequences -- Interest Income and Original Issue Discount"
and "-- Sales of Capital Securities."
Should the Corporation elect to exercise its right to defer payments of
interest on the Junior Subordinated Debt Securities in the future, the market
price of the Capital Securities is likely to be affected. A holder that disposes
of its Capital Securities during an Extension Period, therefore, might not
receive the same return on its investment as a holder that continues to hold its
Capital Securities. In addition, as a result of the existence of the
Corporation's right to defer interest payments on the Junior Subordinated Debt
Securities, the market price of the Capital Securities (which represent
beneficial ownership interests in the Trust holding the Junior Subordinated Debt
Securities as its sole asset) may be more volatile than the market prices of
other securities that are not subject to such deferrals.
17
<PAGE> 19
SPECIAL EVENT REDEMPTION; POSSIBLE TAX LAW CHANGES AFFECTING THE CAPITAL
SECURITIES
Upon the occurrence and continuation of a Special Event, the Corporation
may, at its option and subject to receipt of prior approval of the Federal
Reserve if such approval is then required under applicable law, rules,
guidelines or policies, redeem the Junior Subordinated Debt Securities in whole,
but not in part, at the Special Event Prepayment Price (as defined herein). In
such event, the Trust will redeem the Trust Securities on a pro rata basis to
the same extent as the Junior Subordinated Debt Securities are redeemed by the
Corporation. See "Description of Exchange Securities -- Description of Exchange
Junior Subordinated Debt Securities -- Special Event Prepayment",
"-- Description of Exchange Capital Securities -- Mandatory Redemption" and
"-- Description of Exchange Capital Securities -- Liquidation of the Trust and
Distribution of Junior Subordinated Debt Securities."
A "Special Event" means a Tax Event or a Regulatory Capital Event, as the
case may be.
A "Tax Event" means the receipt by the Corporation of an opinion of
independent counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed 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 or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
Issue Date, 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 Junior
Subordinated Debt Securities, (ii) interest payable by the Corporation on the
Junior Subordinated Debt Securities is not, or within 90 days of the date of
such opinion, will not be, deductible by the Corporation, 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 more than a de minimis
amount of other taxes, duties or other governmental charges.
A "Regulatory Capital Event" means that the Corporation shall have received
an opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Federal Reserve or (b)
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of original
issuance of the Capital Securities, the Capital Securities do not constitute, or
within 90 days of the date thereof, will not constitute, Tier 1 capital (as
defined herein) (or its then equivalent); provided, however, that the
distribution of the Junior Subordinated Debt Securities in connection with the
liquidation of the Trust by the Corporation and the treatment thereafter of the
Junior Subordinated Debt Securities as other than Tier 1 capital shall not in
and of itself constitute a Regulatory Capital Event unless such liquidation
shall have occurred in connection with a Tax Event.
PROPOSED TAX LEGISLATION
On February 6, 1997, as part of President Clinton's fiscal 1998 Budget
Proposal, the United States Treasury Department proposed legislation that would,
among other things, deny an issuer a deduction for United States federal income
tax purposes for the payment of interest on instruments with characteristics
similar to the Junior Subordinated Debt Securities. If the proposed legislation
were enacted in its current form, it is not expected to apply to the Junior
Subordinated Debt Securities since the proposed effective date for this
provision will be the date of first committee action, which has not yet
occurred. There can be no assurances, however, that the proposed legislation, if
enacted, or similar legislation enacted after the date hereof would not
adversely affect the tax treatment of the Junior Subordinated Debt Securities,
resulting in a Tax Event, which may permit the Corporation, upon the receipt of
any required regulatory approval, to cause a redemption of the Trust Securities
at the Special Event Redemption Price by electing to prepay the Junior
Subordinated Debt Securities at the Special Event Prepayment Price. See
"Description of Exchange Securities -- Description of Exchange Capital
Securities -- Mandatory Redemption" and "Description of Exchange
Securities -- Description of Exchange Junior Subordinated Debt
Securities -- Special Event
18
<PAGE> 20
Prepayment." See also "Certain United States Federal Income Tax
Consequences -- Proposed Tax Legislation."
LIQUIDATION DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The Corporation has the right at any time to distribute the Junior
Subordinated Debt Securities to holders of the Trust Securities. Under current
United States federal income tax law, a distribution of Junior Subordinated Debt
Securities upon the dissolution of the Trust would not be a taxable event to
holders of the Capital Securities. If, however, the Trust is characterized for
United States federal income tax purposes as an association taxable as a
corporation at the time of dissolution of the Trust, the distribution of the
Junior Subordinated Debt Securities may constitute a taxable event to holders of
Capital Securities. Moreover, upon occurrence of a Special Event, a dissolution
of the Trust in which holders of the Capital Securities receive cash would be a
taxable event to such holders. See "Certain United States Federal Income
Taxation Consequences -- Distribution of Junior Subordinated Debt Securities or
Cash Upon Liquidation of the Trust."
There can be no assurance as to the market prices for Capital Securities or
Junior Subordinated Debt Securities that may be distributed in exchange for
Capital Securities if a liquidation of the Trust occurs. Accordingly, the
Capital Securities or the Junior Subordinated Debt Securities may trade at a
discount to the price that the investor paid to purchase the Capital Securities
offered hereby. Because holders of Capital Securities may receive Junior
Subordinated Debt Securities on termination of the Trust, prospective purchasers
of Exchange Capital Securities are also making an investment decision with
regard to the Exchange Junior Subordinated Debt Securities and should carefully
review all the information regarding the Exchange Junior Subordinated Debt
Securities contained herein. See "Description of Exchange Securities --
Description of Exchange Capital Securities -- Description of Liquidation of the
Trust and Distribution of Junior Subordinated Debt Securities" and
"-- Description of Exchange Junior Subordinated Debt Securities -- General."
RIGHTS UNDER THE GUARANTEE
The Guarantee guarantees to the holders of the Capital Securities the
following payments, to the extent not paid by the Trust: (i) any accumulated and
unpaid Distributions required to be paid on the Capital Securities, to the
extent that the Trust has funds on hand available therefor at such time, (ii)
the applicable Redemption Price with respect to any Capital Securities called
for redemption, to the extent that the Trust has funds on hand available
therefor at such time, and (iii) upon a voluntary or involuntary dissolution,
winding-up or liquidation of the Trust (unless the Junior Subordinated Debt
Securities are distributed to holders of the Capital Securities), the lesser of
(a) the aggregate of the Liquidation Amount and all accumulated and unpaid
Distributions to the date of payment, to the extent that the Trust has funds on
hand available therefor at such time, and (b) the amount of assets of the Trust
remaining available for distribution to holders of the Capital Securities after
the satisfaction of liabilities to creditors of the Trust as provided by
applicable law.
The holders of not less than a majority in aggregate Liquidation Amount of
the Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee (as
defined herein) in respect of the Guarantee or to direct the exercise of any
trust power conferred upon the Guarantee Trustee under the Guarantee. Any holder
of the Capital Securities may institute a legal proceeding directly against the
Corporation to enforce its rights under the Guarantee without first instituting
a legal proceeding against the Trust, the Guarantee Trustee or any other person
or entity. If the Corporation were to default on its obligation to pay amounts
payable under the Junior Subordinated Debt Securities, the Trust would lack
funds for the payment of Distributions or amounts payable on redemption of the
Capital Securities or otherwise, and, in such event, holders of the Capital
Securities would not be able to rely upon the Guarantee for payment of such
amounts. Instead, in the event a Debenture Event of Default shall have occurred
and be continuing and such event is attributable to the failure of the
Corporation to pay principal of or interest on the Junior Subordinated Debt
Securities on the applicable payment date, then a holder of Capital Securities
may institute a Direct Action. Notwithstanding any payments made to a holder of
Capital Securities by the Corporation in connection with a Direct Action, the
Corporation shall remain
19
<PAGE> 21
obligated to pay the principal of and interest on the Junior Subordinated Debt
Securities, and the Corporation shall be subrogated to the rights of the holder
of such Capital Securities with respect to payments on the Capital Securities to
the extent of any payments made by the Corporation to such holder in any Direct
Action. Except as described herein, holders of Capital Securities will not be
able to exercise directly any other remedy available to the holders of the
Junior Subordinated Debt Securities or assert directly any other rights in
respect of the Junior Subordinated Debt Securities. See "Description of Exchange
Securities -- Description of Exchange Junior Subordinated Debt
Securities -- Enforcement of Certain Rights by Holders of Exchange Capital
Securities," "-- Description of Exchange Junior Subordinated Debt
Securities -- Debenture Events of Default" and "-- Description of Exchange
Guarantee." The Declaration provides that each holder of Capital Securities by
acceptance thereof agrees to the provisions of the Guarantee and the Indenture.
Bankers Trust Company will act as Guarantee Trustee under the Exchange Guarantee
and will hold the Guarantee for the benefit of the holders of the Capital
Securities. Bankers Trust Company will also act as Property Trustee under the
Declaration and as Debenture Trustee under the Indenture.
LIMITED VOTING RIGHTS
Holders of Capital Securities will generally have limited voting rights
relating only to the modification of the Capital Securities, the dissolution,
winding-up or liquidation of the Trust, and the exercise of the Trust's rights
as holder of Junior Subordinated Debt Securities. The right to vote to appoint,
remove or replace the Property Trustee or the Delaware Trustee is vested
exclusively in the holder of the Common Securities except upon the occurrence of
certain events described herein. The Property Trustee, the Administrative
Trustees and the Corporation may amend the Declaration without the consent of
holders of Capital Securities to ensure that the Trust will be classified for
United States Federal income tax purposes as a grantor trust, even if such
action adversely affects the interests of such holders. See "Description of
Exchange Securities -- Description of Exchange Capital Securities -- Removal of
Issuer Trustees" and "-- Voting Rights; Amendment of the Declaration."
CONSEQUENCES OF A FAILURE TO EXCHANGE ORIGINAL CAPITAL SECURITIES
The Original Capital Securities have not been registered under the
Securities Act or any state securities laws and therefore may not be offered,
sold or otherwise transferred except in compliance with the registration
requirements of the Securities Act and any other applicable securities laws, or
pursuant to an exemption therefrom or in a transaction not subject thereto, and
in each case in compliance with certain other conditions and restrictions.
Original Capital Securities which remain outstanding after consummation of the
Exchange Offer will continue to bear a legend reflecting such restrictions on
transfer. In addition, upon consummation of the Exchange Offer, holders of
Original Capital Securities which remain outstanding will not be entitled to any
rights to have such Original Capital Securities registered under the Securities
Act or to any similar rights under the Registration Agreement (subject to
certain limited exceptions). The Corporation and the Trust do not intend to
register under the Securities Act any Original Capital Securities which remain
outstanding after consummation of the Exchange Offer (subject to such limited
exceptions, if applicable). To the extent that Original Capital Securities are
tendered and accepted in the Exchange Offer, a holder's ability to sell
untendered Original Capital Securities could be adversely affected.
The Exchange Capital Securities and any Original Capital Securities which
remain outstanding after consummation of the Exchange Offer will vote together
as a single class for purposes of determining whether holders of the requisite
percentage in outstanding Liquidation Amount thereof have taken certain actions
or exercised certain rights under the Declaration. See "Description of Exchange
Securities -- Description of Exchange Capital Securities -- Voting Rights;
Amendment of the Declaration."
The Original Capital Securities provide, among other things, that, if a
registration statement relating to the Exchange Offer has not been filed by May
30, 1997 and declared effective by June 30, 1997, the Distribution rate borne by
the Original Capital Securities commencing on July 1, 1997 will increase by
0.25% per annum until the Exchange Offer is consummated. Upon consummation of
the Exchange Offer, holders of Original Capital Securities will not be entitled
to any increase in the Distribution rate thereon or any further
20
<PAGE> 22
registration rights under the Registration Agreement, except under limited
circumstances. See "Description of Original Securities."
ABSENCE OF PUBLIC MARKET
The Original Capital Securities were issued to, and the Corporation
believes such securities are currently owned by, a relatively small number of
beneficial owners. The Original Capital Securities have not been registered
under the Securities Act and will be subject to restrictions on transferability
if they are not exchanged for the Exchange Capital Securities. Although the
Exchange Capital Securities may be resold or otherwise transferred by the
holders (who are not affiliates of the Corporation or the Trust) without
compliance with the registration requirements under the Securities Act, they
will constitute a new issue of securities with no established trading market.
Capital Securities may be transferred by the holders thereof only in blocks
having a Liquidation Amount of not less than $100,000 (100 Capital Securities).
The Corporation and the Trust have been advised by Salomon Brothers, Inc and
Keefe, Bruyette & Woods, Inc., (the "Initial Purchasers") that the Initial
Purchasers presently intend to make a market in the Exchange Capital Securities.
However, the Initial Purchasers are not obligated to do so and any market-making
activity with respect to the Exchange Capital Securities may be discontinued at
any time without notice. In addition, such market-making activity will be
subject to the limits imposed by the Securities Act and the Exchange Act and may
be limited during the Exchange Offer. Accordingly, no assurance can be given
that an active public or other market will develop for the Exchange Capital
Securities or the Original Capital Securities, or as to the liquidity of or the
trading market for the Exchange Capital Securities or the Original Capital
Securities. If an active public market does not develop, the market price and
liquidity of the Exchange Capital Securities may be adversely affected.
If a public trading market develops for the Exchange Capital Securities,
future trading prices will depend on many factors, including, among other
things, prevailing interest rates, the financial condition of the Corporation
and the market for similar securities. Depending on these and other factors, the
Exchange Capital Securities may trade at a discount.
Notwithstanding the registration of the Exchange Capital Securities in the
Exchange Offer, holders who are "affiliates" (as defined under Rule 405 of the
Securities Act) of the Corporation or the Trust may publicly offer for sale or
resell the Exchange Capital Securities only in compliance with the provisions of
Rule 144 under the Securities Act.
Each broker-dealer that receives Exchange Capital Securities for its own
account in exchange for Original Capital Securities, where such Original Capital
Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Capital Securities.
See "Plan of Distribution."
EXCHANGE OFFER PROCEDURES
Subject to the conditions set forth under "The Exchange Offer -- Conditions
to the Exchange Offer," issuance of the Exchange Capital Securities in exchange
for Original Capital Securities pursuant to the Exchange Offer will be made only
after a timely receipt by the Trust of (i) a book-entry confirmation (as defined
below) evidencing the tender of such Original Capital Securities through ATOP or
(ii) certificates representing such Original Capital Securities, a properly
completed and duly executed Letter of Transmittal, with any required signature
guarantees, and all other required documents. See "The Exchange Offer --
Acceptance for Exchange and Issuance of Capital Securities" and "-- Procedures
for Tendering Original Capital Securities." Therefore, holders of the Original
Capital Securities desiring to tender such Original Capital Securities in
exchange for Exchange Capital Securities should allow sufficient time to ensure
timely delivery. Neither the Corporation nor the Trust is under any duty to give
notification of defects or irregularities with respect to the tenders of
Original Capital Securities for exchange.
21
<PAGE> 23
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges of
the Corporation for the respective periods indicated.
<TABLE>
<CAPTION>
ENDED DECEMBER 31,
-----------------------------------------
1996 1995 1994 1993 1992
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Ratios of Earnings to Fixed Charges:
Excluding interest on deposits................ 3.87 5.73 4.35 2.81 3.69
Including interest on deposits................ 1.64 1.83 1.61 1.19 1.16
</TABLE>
For purposes of computing the ratios of earnings to fixed charges, earnings
represent net income before income taxes plus fixed charges. Fixed charges
excluding interest on deposits consist of interest on long-term debt and
short-term borrowings and one-third of rental expense (which is deemed
representative of the interest factor). Fixed charges including interest on
deposits consist of the foregoing items plus interest on deposits.
22
<PAGE> 24
NORTH FORK CAPITAL TRUST I
The Trust is a statutory business trust formed under Delaware law pursuant
to (i) the original declaration of trust executed by the Corporation, as
Depositor, Bankers Trust (Delaware), as Delaware Trustee, and the Administrative
Trustees named therein, which original declaration of trust was amended and
restated and executed by the Corporation, as Depositor, Bankers Trust Company,
as Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein (the "Declaration"), and (ii) the filing
of a certificate of trust with the Delaware Secretary of State on December 23,
1996. The Trust exists for the exclusive purposes of (i) issuing and selling the
Trust Securities, (ii) using the proceeds from the sale of the Trust Securities
to acquire the Junior Subordinated Debt Securities and (iii) engaging in only
those other activities necessary, advisable or incidental thereto (such as
registering the transfer of the Capital Securities). Accordingly, the Junior
Subordinated Debt Securities are the sole assets of the Trust, and payments
under the Junior Subordinated Debt Securities are the sole revenues of the
Trust. All of the Common Securities are owned directly or indirectly by the
Corporation. The Common Securities will rank pari passu, and payments are and
will be made thereon pro rata, with the Capital Securities, except that upon the
occurrence and continuance of an Event of Default under the Declaration
resulting from a Debenture Event of Default, the rights of the Corporation as
holder of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption or otherwise will be subordinated to the
rights of the holders of the Capital Securities. See "Description of Exchange
Securities -- Description of Exchange Capital Securities -- Subordination of
Common Securities." The Corporation has acquired Common Securities in an
aggregate Liquidation Amount equal to 3% of the total capital of the Trust. The
Trust has a term of 40 years, but may terminate earlier as provided in the
Declaration. The Trust's business and affairs are conducted by its trustees,
each appointed by the Corporation as holder of the Common Securities. The
trustees for the Trust will be Bankers Trust Company, as the Property Trustee,
Bankers Trust (Delaware), as the Delaware Trustee, and two individual trustees
as Administrative Trustees who are employees or officers of or affiliated with
the Corporation (collectively, the "Issuer Trustees"). Bankers Trust Company, as
Property Trustee, currently acts as sole indenture trustee under the
Declaration. Bankers Trust Company also acts as trustee under the Exchange
Guarantee and the Indenture. See "-- Description of Exchange Junior Subordinated
Debt Securities" and "-- Description of Exchange Guarantee." The holder of the
Common Securities of the Trust, or the holders of a majority in Liquidation
Amount of the Capital Securities if an Event of Default under the Declaration
resulting from a Debenture Event of Default has occurred and is continuing, is
entitled to appoint, remove or replace the Property Trustee and/or Delaware
Trustee. In no event do the holders of the Capital Securities have the right to
vote to appoint, remove or replace the Administrative Trustees; such voting
rights are vested exclusively in the holder of the Common Securities. The duties
and obligations of each Issuer Trustee are governed by the Declaration. Pursuant
to the expense provisions under the Indenture, the Corporation, as Issuer of the
Junior Subordinated Debt Securities, has and will continue to pay all fees and
expenses related to the Trust and the offering of the Capital Securities and has
and will continue to pay, directly or indirectly, all ongoing costs, expenses
and liabilities of the Trust. See "-- Description of Exchange Capital
Securities -- Expenses and Taxes." The principal executive office of the Trust
is c/o North Fork Bancorporation, Inc., 275 Broad Hollow Road, Melville, New
York 11747. Telephone inquiries may be directed to Anthony Abate, Senior Vice
President and Secretary, at (516) 844-1004.
23
<PAGE> 25
NORTH FORK
North Fork, with its executive headquarters located in Melville, New York,
is a bank holding company organized under the laws of the State of Delaware in
1980 and registered under the Bank Holding Company Act of 1956, as amended.
North Fork's primary subsidiary, North Fork Bank, operates eighty-two retail
banking facilities throughout Suffolk, Nassau, New York, Queens, Westchester and
Rockland Counties of New York. North Fork, through North Fork Bank, provides a
variety of banking and financial services to middle market and small business
organizations, local government units, and retail customers in the metropolitan
New York area. On December 31, 1996, North Side Savings Bank ("North Side")
merged (the "Merger") with and into North Fork Bank, with North Fork Bank
surviving the Merger as a wholly owned subsidiary of North Fork. North Side had
$1.6 billion in total assets, $1.2 billion in deposit liabilities, $124.4
million in capital and operated seventeen full-service banking locations in the
New York counties of Bronx, Queens, Nassau and Suffolk. North Fork issued 7.5
million shares of common stock in connection with this merger, which was
accounted for under the pooling-of-interests method of accounting, and
accordingly, the Registrant's consolidated financial statements include the
consolidated results of North Side. Immediately after the Merger, North Fork had
total assets and deposit liabilities of $5.8 billion and $4.5 billion,
respectively. The principal executive offices of North Fork are located at 275
Broad Hollow Road, Melville, New York 11747 and its telephone number is (516)
844-1004.
Acquisitions have been, and are expected to continue to be, an important
part of the expansion of the Corporation's business. During the first quarter of
1996, North Fork Bank consummated the acquisition of the domestic commercial
banking business of Extebank, which at closing had approximately $388 million in
total assets, $348 million in deposit liabilities, and $30 million in capital,
for $47 million in cash. During such quarter, North Fork Bank also consummated
the acquisition of ten Long Island branches of First Nationwide Bank, with
approximately $572 million in deposits, at a deposit premium of 6.35%, for $36
million in cash.
At December 31, 1996, North Fork had assets of $5.8 billion, deposit
liabilities of $4.5 billion and stockholders' equity of $457.5 million. On
December 20, 1996, the Corporation completed the public offering of 600,000
shares of its common stock held in treasury, for which it received aggregate
proceeds of approximately $19.7 million.
North Fork is a legal entity separate and distinct from its subsidiaries.
The ability of holders of debt and equity securities of North Fork to benefit
from the distribution of assets of any subsidiary upon the liquidation or
reorganization of such subsidiary is subordinate to prior claims of creditors of
the subsidiary (including depositors in the case of banking subsidiaries) except
to the extent that a claim of North Fork as a creditor may be recognized.
There are various statutory and regulatory limitations on the extent to
which present and future banking subsidiaries of North Fork can finance or
otherwise transfer funds to North Fork or its nonbanking subsidiaries, whether
in the form of loans, extensions of credit, investments or asset purchases.
In addition, there are regulatory limitations on the payment of dividends
directly or indirectly to North Fork from its existing banking subsidiary. Under
applicable banking statutes, at January 1, 1997, North Fork's banking subsidiary
could have declared additional dividends of approximately $55.6 million.
However, Federal and state regulatory agencies also have the authority to limit
further North Fork's banking subsidiary's payment of dividends based on other
factors, such as the maintenance of adequate capital for such subsidiary bank,
which could reduce the amount of dividends otherwise payable.
Under the policy of the Federal Reserve, North Fork is expected to act as a
source of financial strength to each subsidiary bank and to commit resources to
support such subsidiary bank in circumstances where North Fork might not do so
absent such policy. In addition, any subordinated loans by North Fork to any
subsidiary bank would also be subordinate in right of payment to deposits and
obligations to general creditors of such subsidiary bank.
24
<PAGE> 26
SELECTED HISTORICAL FINANCIAL INFORMATION
The following unaudited consolidated summary sets forth selected financial
data for North Fork and its subsidiaries for each of the years in the five-year
period ending December 31, 1996. The following summary should be read in
conjunction with the financial information incorporated herein by reference to
other documents. See "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------------------------------
1996 1995(1) 1994(1) 1993(1) 1992(1)
---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT RATIOS AND PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
STATEMENT OF INCOME DATA:
Interest Income (tax equivalent
basis)(2).......................... $ 409,125 $ 334,462 $ 296,924 $ 290,534 $ 331,211
Interest Expense..................... 174,361 140,399 112,576 117,153 175,937
---------- ---------- ---------- ---------- ----------
Net Interest Income (tax equivalent
basis).......................... 234,764 194,063 184,348 173,381 155,274
Less: Tax Equivalent Basis
Adjustment......................... 3,818 1,970 1,862 1,489 1,557
---------- ---------- ---------- ---------- ----------
Net Interest Income................ 230,946 192,093 182,486 171,892 153,717
Provision for Loan Losses............ 6,800 11,825 6,825 26,608 34,612
Non-Interest Income Exclusive of Net
Securities Gains/(Losses).......... 29,245 23,010 21,674 21,868 20,161
Net Securities Gains/(Losses)........ 1,878 6,734 (9,189) 1,321 10,111
Other Real Estate Expenses........... 753 1,255 4,929 25,246 17,696
Merger Related Restructure Charges... 21,613 -- 14,338 -- 1,200
SAIF Recapitalization Charge......... 8,350 -- -- -- --
Other Non-Interest Expenses.......... 112,281 91,565 99,338 117,316 101,605
---------- ---------- ---------- ---------- ----------
Income Before Income Taxes........... 112,272 117,192 69,541 25,911 28,876
Provision for Income Taxes........... 49,830 49,850 26,502 13,015 14,378
---------- ---------- ---------- ---------- ----------
Net Income........................... $ 62,442 $ 67,342 $ 43,039 $ 12,896 $ 14,498
========== ========== ========== ========== ==========
AVERAGE BALANCE SHEET DATA:
Securities........................... 2,386,493 1,874,624 1,832,327 1,675,583 1,242,146
Loans, net........................... 2,778,663 2,358,636 2,313,419 2,288,712 2,581,547
Total Assets......................... 5,518,016 4,470,920 4,417,627 4,315,839 4,360,516
Total Deposits....................... 4,373,570 3,634,149 3,600,686 3,671,336 3,897,054
Federal Funds Purchased & Securities
Sold Under Agreements to
Repurchase......................... 610,960 350,393 378,198 220,120 82,791
Other Borrowings..................... 38,934 36,397 49,044 36,559 55,190
Stockholders' Equity................. 431,376 389,095 338,826 304,108 267,239
BALANCE SHEET DATA AT DECEMBER 31:
Securities........................... 2,157,506 2,235,339 1,766,235 1,782,271 1,454,235
Loans, net........................... 3,171,525 2,400,282 2,303,920 2,128,808 2,419,107
Total Assets......................... 5,750,527 4,890,866 4,258,827 4,268,034 4,178,229
Total Deposits....................... 4,469,510 3,739,720 3,538,768 3,633,619 3,736,054
Federal Funds Purchased & Securities
Sold Under Agreements to
Repurchase......................... 621,789 642,369 246,875 255,643 50,476
Other Borrowings..................... 35,000 35,000 75,000 33,000 53,000
Company-Obligated Mandatorily
Redeemable Capital Securities of
Subsidiary Trust................... 99,637 -- -- -- --
Stockholders' Equity................. 457,531 426,129 355,921 314,263 282,886
</TABLE>
25
<PAGE> 27
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------------------------------
1996 1995(1) 1994(1) 1993(1) 1992(1)
---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT RATIOS AND PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
PER SHARE(6)
Net Income(3)........................ $ 1.94 $ 2.09 $ 1.38 $ 0.42 $ 0.54
Cash Dividends(4).................... 0.85 0.55 0.35 -- --
Book Value at December 31............ 14.10 13.19 11.68 10.55 10.30
Market Price at December 31.......... 35.63 25.25 13.75 12.88 8.13
SELECTED RATIOS:
Return on Average Total Assets(3).... 1.13% 1.51% 0.97% 0.30% 0.33%
Return on Average Stockholders' Eq-
uity(3)............................ 14.48% 17.31% 12.70% 4.24% 5.43%
Core Efficiency Ratio(5)............. 42.53% 42.18% 48.22% 55.97% 57.92%
Net Interest Margin.................. 4.50% 4.56% 4.38% 4.26% 3.74%
Average Stockholders' Equity to
Average Total Assets............... 7.82% 8.70% 7.67% 7.05% 6.13%
Tier I Capital Ratio................. 15.12% 15.64% 14.44% 12.25% 9.59%
Risk Adjusted Capital Ratio.......... 16.38% 16.90% 15.71% 13.52% 10.85%
Leverage Ratio....................... 8.61% 8.25% 7.73% 6.56% 5.79%
Allowance for Loan
Losses/Non-Performing Loans........ 265% 151% 109% 89% 46%
Non-Performing Assets to Total
Assets............................. 0.39% 0.92% 1.62% 2.26% 5.02%
AVERAGE EQUIVALENT SHARES OUTSTAND-
ING(6)............................. 32,139 32,216 31,156 30,563 26,988
NUMBER OF BRANCH OFFICES OF THE
CORPORATION........................ 82 67 63 52 54
</TABLE>
- ---------------
(1) On December 31, 1996, North Side Savings Bank ("North Side") was merged with
and into the Corporation. On November 30, 1994, Metro Bancshares Inc.
("Metro") was merged with and into the Corporation. These mergers have been
accounted for as pooling-of-interests transactions and, accordingly, the
financial results for all periods reported have been retroactively restated
to include North Side (See Note 2(a) of the notes to consolidated financial
statements, which are included in documents incorporated by reference
herein) and Metro.
(2) Interest income on a tax equivalent basis includes the additional amount of
interest income that would have been earned if the Corporation's investment
in state and municipal obligations and tax-exempt loans had been made in
investment securities and loans subject to New York State, New York City and
Federal income taxes yielding the same after tax income.
(3) Net income per share exclusive of the nonrecurring SAIF Recapitalization and
Merger Related Restructure charge was $2.66 for 1996. The return on average
total assets and the return on average stockholders' equity, as adjusted for
the aforementioned charges, would have been 1.55% and 19.85%, respectively.
(4) Cash dividends do not reflect dividends declared by North Side and Metro
prior to their respective merger dates.
(5) The core efficiency ratio is defined as the ratio of non-interest expense
net of other real estate expenses and other non-recurring charges, to net
interest income on a taxable equivalent basis and other non-interest income
net of net securities gains/(losses).
(6) On April 22, 1997, the Shareholders of the Corporation approved an amendment
to the Corporation's Certificate of Incorporation to increase the number of
authorized shares of Common Stock to two hundred million, which will enable
the Corporation to effect a two-for-one stock split and to issue shares for
other corporate purposes. The new shares will be distributed on May 15, 1997
to shareholders of record on April 25, 1997.
26
<PAGE> 28
CAPITALIZATION
The following table sets forth the consolidated capitalization of North
Fork at December 31, 1996. The issuance of the Exchange Capital Securities in
the Exchange Offer will have no effect on the capitalization of the Corporation.
This table is based on, and is qualified in its entirety by, the historical
consolidated financial statements of North Fork, including the related notes
thereto, which are included in documents incorporated by reference herein, and
should be read in conjunction therewith.
<TABLE>
<CAPTION>
(DOLLARS IN
THOUSANDS)
-----------
<S> <C>
Senior Note Payable............................................................. $ 25,000
Other Long-Term Borrowings...................................................... 430,500
--------
Total Long Term Borrowings............................................ 455,500
========
Company-Obligated Mandatorily Redeemable Capital Securities of Subsidiary
Trust(1)...................................................................... 99,637
--------
Stockholders' Equity
Preferred Stock, par value $1.00; authorized 10,000,000 shares; unissued...... --
Common Stock, par value $2.50; authorized 50,000,000 shares, issued 32,599,504
shares(2).................................................................. 81,499
Additional Paid-in Capital...................................................... 180,809
Retained Earnings............................................................... 206,895
Unrealized Losses on Securities Available-for-Sale, net of taxes................ (2,633)
Deferred Compensation........................................................... (5,193)
Treasury Stock at cost; 153,289 shares.......................................... (3,846)
--------
Total Stockholders' Equity................................................. $ 457,531
========
Capital Ratios:
Equity/Assets................................................................. 7.96%
Tier 1 Capital Ratios......................................................... 15.12%
Risk Adjusted Capital Ratios.................................................. 16.38%
Leverage Ratio................................................................ 8.61%
</TABLE>
- ---------------
(1) The "Company-Obligated Mandatorily Redeemable Capital Securities of
Subsidiary Trust" reflects the issuance of the Original Capital Securities.
As described herein, the sole assets of the Trust will be approximately
$103.1 million of Junior Subordinated Debt Securities (including the amounts
attributable to the issuance of the Common Securities of the Trust), which
will mature on December 15, 2026. The Corporation owns all of the Common
Securities of the Trust. It is anticipated that the Trust will not be
subject to the reporting requirements under the Securities Exchange Act of
1934.
(2) On April 22, 1997, the Shareholders of the Corporation approved an amendment
to the Corporation's Certificate of Incorporation to increase the number of
authorized shares of Common Stock to two hundred million, which will enable
the Corporation to effect a two-for-one stock split and to issue shares for
other corporate purposes. The new shares will be distributed on May 15, 1997
to shareholders of record on April 25, 1997.
27
<PAGE> 29
ACCOUNTING TREATMENT
The financial statements of the Trust are consolidated into the
Corporation's consolidated financial statements, with the Capital Securities
treated as minority interest and shown in the Corporation's consolidated balance
sheet as "Company-Obligated Mandatorily Redeemable Securities of Subsidiary
Trust." The financial statement footnotes in the 1996 Annual Report of the
Corporation reflect that the sole asset of the Trust is approximately $103.1
million principal amount of the Junior Subordinated Debt Securities, bearing
interest at 8.70% and maturing on December 15, 2026. All future reports filed by
the Corporation under the Exchange Act will present information regarding the
Trust and other similar trusts in the manner described above.
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
In connection with the sale of the Original Capital Securities, the
Corporation and the Trust entered into the Registration Agreement with the
Initial Purchasers, pursuant to which the Corporation and the Trust agreed to
file and to use their reasonable efforts to cause to become effective with the
Commission a registration statement with respect to the exchange of the Original
Capital Securities for capital securities with terms identical in all material
respects to the terms of the Original Capital Securities. A copy of the
Registration Agreement has been filed as an Exhibit to the Registration
Statement of which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations of
the Corporation and the Trust under the Registration Agreement. The form and
terms of the Exchange Capital Securities are the same as the form and terms of
the Original Capital Securities except that the Exchange Capital Securities have
been registered under the Securities Act and will not be subject to the $100,000
minimum Liquidation Amount transfer restriction and certain other restrictions
on transfer applicable to the Original Capital Securities, and will not provide
for any increase in the Distribution rate thereon. In that regard, the Original
Capital Securities provide, among other things, that, if a registration
statement relating to the Exchange Offer has not been filed by May 30, 1997 and
declared effective by June 30, 1997, the Distribution rate borne by the Original
Capital Securities commencing on July 1, 1997 will increase by 0.25% per annum
until the Exchange Offer is consummated. Upon consummation of the Exchange
Offer, holders of Original Capital Securities will not be entitled to any
increase in the Distribution rate thereon or any further registration rights
under the Registration Agreement, except under limited circumstances. See "Risk
Factors -- Consequences of a Failure to Exchange Original Capital Securities"
and "Description of Original Securities."
The Exchange Offer is not being made to, nor will the Trust accept tenders
for exchange from, holders of Original Capital Securities in any jurisdiction in
which the Exchange Offer or the acceptance thereof would not be in compliance
with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to
the Exchange Offer means any person in whose name the Original Capital
Securities are registered on the books of the Trust or any other person who has
obtained a properly completed bond power from the registered holder, or any
person whose Original Capital Securities are held of record by The Depository
Trust Company ("DTC") who desires to deliver such Original Capital Securities by
book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Corporation will exchange as soon as
practicable after the date hereof, the Original Guarantee for the Exchange
Guarantee and the Original Junior Subordinated Debt Securities, in an amount
corresponding to the Original Capital Securities accepted for exchange, for a
like aggregate principal amount of the Exchange Junior Subordinated Debt
Securities. The Exchange Guarantee and Exchange Junior Subordinated Debt
Securities have been registered under the Securities Act.
28
<PAGE> 30
TERMS OF THE EXCHANGE OFFER
The Trust hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and in the accompanying Letter of Transmittal, to
exchange up to $100,000,000 aggregate Liquidation Amount of Exchange Capital
Securities for a like aggregate Liquidation Amount of Original Capital
Securities properly tendered on or prior to the Expiration Date and not properly
withdrawn in accordance with the procedures described below. The Trust will
issue, promptly after the Expiration Date, an aggregate Liquidation Amount of up
to $100,000,000 of Exchange Capital Securities in exchange for a like principal
amount of outstanding Original Capital Securities tendered and accepted in
connection with the Exchange Offer. Holders may tender their Original Capital
Securities in whole or in part in a Liquidation Amount of not less than $100,000
(100 Capital Securities) or any integral multiple of $1,000 Liquidation Amount
(one Capital Security) in excess thereof.
The Exchange Offer is not conditioned upon any minimum Liquidation Amount
of Original Capital Securities being tendered. As of the date of this
Prospectus, $100,000,000 aggregate Liquidation Amount of the Original Capital
Securities is outstanding.
Holders of Original Capital Securities do not have any appraisal or
dissenters' rights in connection with the Exchange Offer. Original Capital
Securities which are not tendered for or are tendered but not accepted in
connection with the Exchange Offer will remain outstanding and be entitled to
the benefits of the Declaration, but will not be entitled to any further
registration rights under the Registration Agreement, except under limited
circumstances. See "Risk Factors -- Consequences of a Failure to Exchange
Original Capital Securities" and "Description of Original Securities."
If any tendered Original Capital Securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted Original Capital
Securities will be returned, without expense, to the tendering holder thereof
promptly after the Expiration Date.
Holders who tender Original Capital Securities in connection with the
Exchange Offer will not be required to pay brokerage commissions or fees or,
subject to the instructions in the Letter of Transmittal, transfer taxes with
respect to the exchange of Original Capital Securities in connection with the
Exchange Offer. The Corporation will pay all charges and expenses, other than
certain applicable taxes described below, in connection with the Exchange Offer.
See "-- Fees and Expenses."
NEITHER THE CORPORATION, THE BOARD OF DIRECTORS OF THE CORPORATION NOR ANY
ISSUER TRUSTEE OF THE TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF ORIGINAL
CAPITAL SECURITIES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY
PORTION OF THEIR ORIGINAL CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN
ADDITION, NO ONE HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF
ORIGINAL CAPITAL SECURITIES MUST MAKE THEIR OWN DECISIONS WHETHER TO TENDER
PURSUANT TO THE EXCHANGE OFFER AND, IF SO, THE AGGREGATE AMOUNT OF ORIGINAL
CAPITAL SECURITIES TO TENDER BASED ON SUCH HOLDERS' OWN FINANCIAL POSITIONS AND
REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS.
The term "Expiration Date" means 5:00 p.m., New York City time, on June 3,
1997 unless the Exchange Offer is extended by the Corporation or the Trust (in
which case the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended).
The Corporation and the Trust expressly reserve the right in their sole and
absolute discretion, subject to applicable law, at any time and from time to
time, (i) to delay the acceptance of the Original Capital Securities for
exchange, (ii) to terminate the Exchange Offer (whether or not any Original
Capital Securities have theretofore been accepted for exchange) if the Trust
determines, in its sole and absolute discretion, that any of the events or
conditions referred to under "-- Conditions to the Exchange Offer" have occurred
or exist or have not been satisfied, (iii) to extend the Expiration Date of the
Exchange Offer and retain all Original Capital Securities tendered pursuant to
the Exchange Offer, subject, however, to the right of holders of Original
Capital Securities to withdraw their tendered Original Capital Securities as
described under "-- Withdrawal Rights," and (iv) to waive any condition or
otherwise amend the terms of the Exchange Offer
29
<PAGE> 31
in any respect. If the Exchange Offer is amended in a manner determined by the
Corporation and the Trust to constitute a material change, or if the Corporation
and the Trust waive a material condition of the Exchange Offer, the Corporation
and the Trust will promptly disclose such amendment by means of a prospectus
supplement that will be distributed to the holders of the Original Capital
Securities, and the Corporation and the Trust will extend the Exchange Offer to
the extent required by Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice thereof to the Exchange Agent and by
making a public announcement thereof, and such announcement in the case of an
extension will be made no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. Without limiting
the manner in which the Corporation and the Trust may choose to make any public
announcement and subject to applicable law, the Corporation and the Trust shall
have no obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a release to an appropriate news
agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF EXCHANGE CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, the
Trust will exchange, and will issue to the Exchange Agent, Exchange Capital
Securities for Original Capital Securities validly tendered and not withdrawn
promptly after the Expiration Date.
In all cases, delivery of Exchange Capital Securities in exchange for
Original Capital Securities tendered and accepted for exchange pursuant to the
Exchange Offer will be made only after timely receipt by the Exchange Agent of
(i) the book-entry confirmation described below under "-- Procedures for
Tendering Original Capital Securities -- Book-Entry Transfer" or (ii)
certificates representing such Original Capital Securities, the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, and any other documents required by the
Letter of Transmittal.
Subject to the terms and conditions of the Exchange Offer, the Trust will
be deemed to have accepted for exchange, and thereby exchanged, Original Capital
Securities validly tendered and not withdrawn as, if and when the Trust gives
oral or written notice to the Exchange Agent of the Trust's acceptance of such
Original Capital Securities for exchange pursuant to the Exchange Offer. The
Exchange Agent will act as agent for the Trust for the purpose of receiving
tenders of book-entry confirmations or certificates representing Original
Capital Securities, Letters of Transmittal and related documents, and as agent
for tendering holders for the purpose of receiving book-entry confirmations or
certificates representing Original Capital Securities, Letters of Transmittal
and related documents and transmitting Exchange Capital Securities to validly
tendering holders. Such exchange will be made promptly after the Expiration
Date. If for any reason whatsoever, acceptance for exchange or the exchange of
any Original Capital Securities tendered pursuant to the Exchange Offer is
delayed (whether before or after the Trust's acceptance for exchange of Original
Capital Securities) or the Trust extends the Exchange Offer or is unable to
accept for exchange or exchange Original Capital Securities tendered pursuant to
the Exchange Offer, then, without prejudice to the Trust's rights set forth
herein, the Exchange Agent may, nevertheless, on behalf of the Trust and subject
to Rule 14e-1(c) under the Exchange Act, retain tendered Original Capital
Securities and such Original Capital Securities may not be withdrawn except to
the extent tendering holders are entitled to withdrawal rights as described
under "-- Withdrawal Rights."
Pursuant to the Letter of Transmittal, a holder of Original Capital
Securities will warrant and agree that it has full power and authority to
tender, exchange, sell, assign and transfer Original Capital Securities, that
the Trust will acquire good, marketable and unencumbered title to the tendered
Original Capital Securities, free and clear of all liens, restrictions, charges
and encumbrances, and the Original Capital Securities tendered for exchange are
not subject to any adverse claims or proxies. Such holder also will warrant and
agree that it will, upon request, execute and deliver any additional documents
deemed by the Trust or the Exchange Agent to be necessary or desirable to
complete the exchange, sale, assignment, and transfer of the Original Capital
Securities tendered pursuant to the Exchange Offer. Tendering holders of
Original Capital Securities that use ATOP will, by so doing, acknowledge that
they are bound by the terms of the Letter of Transmittal.
30
<PAGE> 32
PROCEDURES FOR TENDERING ORIGINAL CAPITAL SECURITIES
BOOK-ENTRY TRANSFER. For purposes of the Exchange Offer, the Exchange
Agent will establish an account with respect to the Original Capital Securities
at DTC within two business days after the date of this Prospectus. Any tendering
financial institution that is a participant in DTC's book-entry transfer
facility system must make a book-entry delivery of the Original Capital
Securities by causing DTC to transfer such Original Capital Securities into the
Exchange Agent's account at DTC in accordance with DTC's ATOP procedures for
transfers. Such holder of Original Capital Securities using ATOP should transmit
its acceptance to DTC on or prior to the Expiration Date (or comply with the
guaranteed delivery procedures set forth below). DTC will verify such
acceptance, execute a book-entry transfer of the tendered Original Capital
Securities into the Exchange Agent's account at DTC and then send to the
Exchange Agent confirmation of such book-entry transfer, including an agent's
message confirming that DTC has received an express acknowledgement from such
holder that such holder has received and agrees to be bound by this Letter of
Transmittal and that the Trust and the Corporation may enforce this Letter of
Transmittal against such holder (a "book-entry confirmation").
A beneficial owner of Original Capital Securities that are held by or
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee or custodian is urged to contact such entity promptly if such
beneficial owner wishes to participate in the Exchange Offer.
CERTIFICATES. If the tender is not made through ATOP, certificates
representing Original Capital Securities, as well as the Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and any other documents required by the Letter of
Transmittal, must be received by the Exchange Agent at its address set forth
under "-- Exchange Agent" on or prior to the Expiration Date in order for such
tender to be effective (or the guaranteed delivery procedures set forth below
must be complied with).
If less than all of the Original Capital Securities are tendered, a
tendering holder should fill in the amount of Original Capital Securities being
tendered in the appropriate box on the Letter of Transmittal. The entire amount
of Original Capital Securities delivered to the Exchange Agent will be deemed to
have been tendered unless otherwise indicated.
SIGNATURE GUARANTEES. Certificates for the Original Capital Securities
need not be endorsed and signature guarantees on the Letter of Transmittal are
unnecessary unless (a) a certificate for the Original Capital Securities is
registered in a name other than that of the person surrendering the certificate
or (b) such holder completes the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" in the Letter of Transmittal. In the case of (a)
or (b) above, such certificates for Original Capital Securities must be duly
endorsed or accompanied by a properly executed bond power, with the endorsement
or signature on the bond power and on the Letter of Transmittal guaranteed by a
firm or other entity identified in Rule 17Ad-15 under the Exchange Act as an
"eligible guarantor institution," including (as such terms are defined therein):
(i) a bank; (ii) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (iii) a credit union; (iv) a national
securities exchange, registered securities association or clearing agency; or
(v) a savings association that is a participant in a Securities Transfer
Association (an "Eligible Institution"), unless surrendered on behalf of such
Eligible Institution. See Instruction 1 to the Letter of Transmittal.
DELIVERY. The method of delivery of the book-entry confirmation or
certificates representing tendered Original Capital Securities, the letter of
transmittal, and all other required documents is at the option and sole risk of
the tendering holder, and delivery will be deemed made only when actually
received by the Exchange Agent. If delivery is by mail, registered mail, return
receipt requested, properly insured, or an overnight delivery service is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery.
Notwithstanding any other provision hereof, the delivery of Exchange
Capital Securities in exchange for Original Capital Securities tendered and
accepted for exchange pursuant to the Exchange Offer will in all cases be made
only after timely receipt by the Exchange Agent of (i) a book-entry confirmation
with respect to such Original Capital Securities or (ii) certificates
representing Original Capital Securities and a properly
31
<PAGE> 33
completed and duly executed Letter of Transmittal (or facsimile thereof),
together with any required signature guarantees and any other documents required
by the Letter of Transmittal. Accordingly, the delivery of Exchange Capital
Securities might not be made to all tendering holders at the same time, and will
depend upon when book-entry confirmations with respect to Original Capital
Securities or certificates representing Original Capital Securities and other
required documents are received by the Exchange Agent.
GUARANTEED DELIVERY. If a holder desires to tender Original Capital
Securities pursuant to the Exchange Offer and the certificates for such Original
Capital Securities are not immediately available or time will not permit all
required documents to reach the Exchange Agent on or prior to the Expiration
Date, or the procedure for book-entry transfer cannot be completed on a timely
basis, such Original Capital Securities may nevertheless be tendered, provided
that all of the following guaranteed delivery procedures are complied with:
(1) such tenders are made by or through an Eligible Institution;
(2) a properly completed and duly executed notice to the Exchange
Agent guaranteeing delivery to the Exchange Agent of either certificates
representing the Original Capital Securities or a book-entry confirmation
in compliance with the requirements set forth herein (the "Notice of
Guaranteed Delivery"), substantially in the form accompanying the Letter of
Transmittal, is received by the Exchange Agent, as provided below, on or
prior to the Expiration Date;
(3) (a) a book-entry confirmation or (b) the certificates representing
all tendered Original Capital Securities, in proper form for transfer,
together with a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), with any required signature guarantees and any
other documents required by the Letter of Transmittal, are, in any case,
received by the Exchange Agent within three New York Stock Exchange trading
days after the date of execution of the Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or transmitted
by facsimile or mail to the Exchange Agent and must include a guarantee by an
Eligible Institution in the form set forth in such notice.
The Trust's acceptance for exchange of Original Capital Securities tendered
pursuant to any of the procedures described above will constitute a binding
agreement between the tendering holder and the Trust upon the terms and subject
to the conditions of the Exchange Offer.
DETERMINATION OF VALIDITY. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered Original Capital Securities will be determined by the Corporation
and the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. The Corporation and the Trust reserve the absolute
right, in their sole and absolute discretion, to reject any and all tenders
determined by them not to be in proper form or the acceptance of which, or
exchange for, may, in the opinion of counsel to the Corporation and the Trust,
be unlawful. The Corporation and the Trust also reserve the absolute right,
subject to applicable law, to waive any of the conditions of the Exchange Offer
as set forth under "-- Conditions to the Exchange Offer" or any condition or
irregularity in any tender of Original Capital Securities of any particular
holder whether or not similar conditions or irregularities are waived in the
case of other holders.
The interpretation by the Corporation and the Trust of the terms and
conditions of the Exchange Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding. No tender of Original Capital
Securities will be deemed to have been validly made until all irregularities
with respect to such tender have been cured or waived. Neither the Corporation,
the Trust, any affiliates or assigns of the Corporation or the Trust, the
Exchange Agent nor any other person shall be under any duty to give any
notification of any irregularities in tenders or incur any liability for failure
to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney,
or any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by the
Corporation and the Trust, proper evidence satisfactory to the Corporation and
the Trust, in their sole discretion, of such person's authority to so act must
be submitted.
32
<PAGE> 34
RESALES OF EXCHANGE CAPITAL SECURITIES
The Trust is making the Exchange Offer for the Exchange Capital Securities
in reliance on the position of the staff of the Division of Corporation Finance
of the Commission as set forth in certain interpretive letters addressed to
third parties in other transactions. However, neither the Corporation nor the
Trust sought its own interpretive letter and there can be no assurance that the
staff of the Division of Corporation Finance of the Commission would make a
similar determination with respect to the Exchange Offer as it has in such
interpretive letters to third parties. Based on these interpretations by the
staff of the Division of Corporation Finance of the Commission, and subject to
the two immediately following sentences, the Corporation and the Trust believe
that Exchange Capital Securities issued pursuant to this Exchange Offer in
exchange for Original Capital Securities may be offered for resale, resold and
otherwise transferred by a holder thereof (other than a holder who is a
broker-dealer) without further compliance with the registration and prospectus
delivery requirements of the Securities Act, provided that such Exchange Capital
Securities are acquired in the ordinary course of such holder's business and
that such holder is not participating, and has no arrangement or understanding
with any person to participate, in a distribution (within the meaning of the
Securities Act) of such Exchange Capital Securities. However, any holder of
Original Capital Securities who is an "affiliate" of the Corporation or the
Trust or who intends to participate in the Exchange Offer for the purpose of
distributing Exchange Capital Securities, or any broker-dealer who purchased
Original Capital Securities from the Trust to resell pursuant to Rule 144A or
any other available exemption under the Securities Act, (a) will not be able to
rely on the interpretations of the staff of the Division of Corporation Finance
of the Commission set forth in the above-mentioned interpretive letters, (b)
will not be permitted or entitled to tender such Original Capital Securities in
the Exchange Offer and (c) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or other
transfer of such Original Capital Securities unless such sale is made pursuant
to an exemption from such requirements. In addition, as described below, if any
broker-dealer holds Original Capital Securities acquired for its own account as
a result of market-making or other trading activities and exchanges such
Original Capital Securities for Exchange Capital Securities, then such
broker-dealer must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of such Exchange Capital
Securities.
Each holder of Original Capital Securities who wishes to exchange Original
Capital Securities for Exchange Capital Securities in the Exchange Offer will be
required to represent that (i) it is not an "affiliate" of the Corporation or
the Trust, (ii) any Exchange Capital Securities to be received by it are being
acquired in the ordinary course of its business, (iii) it has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such Exchange Capital Securities, and (iv) if
such holder is not a broker-dealer, such holder is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the Securities Act)
of such Exchange Capital Securities. In addition, the Corporation and the Trust
may require such holder, as a condition to such holder's eligibility to
participate in the Exchange Offer, to furnish to the Corporation and the Trust
(or an agent thereof) in writing information as to the number of "beneficial
owners" (within the meaning of Rule 13d-3 under the Exchange Act) on behalf of
whom such holder holds the Capital Securities to be exchanged in the Exchange
Offer. Each broker-dealer that receives Exchange Capital Securities for its own
account pursuant to the Exchange Offer must acknowledge that it acquired the
Original Capital Securities for its own account as the result of market-making
activities or other trading activities and must agree that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Capital Securities. The Letter of Transmittal states
that by so acknowledging and by delivering a prospectus, a broker-dealer will
not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. Based on the position taken by the staff of the Division of
Corporation Finance of the Commission in the interpretive letters referred to
above, the Corporation and the Trust believe that Participating Broker-Dealers
who acquired Original Capital Securities for their own accounts as a result of
market-making activities or other trading activities may fulfill their
prospectus delivery requirements with respect to the Exchange Capital Securities
received upon exchange of such Original Capital Securities (other than Original
Capital Securities which represent an unsold allotment from the initial sale of
the Original Capital Securities) with a prospectus meeting the requirements of
the Securities Act, which may be the prospectus prepared for an exchange offer
so long as it contains a description of the plan of distribution with respect to
the resale of such Exchange Capital
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Securities. Accordingly, this Prospectus, as it may be amended or supplemented
from time to time, may be used by a Participating Broker-Dealer during the
period referred to below in connection with resales of Exchange Capital
Securities received in exchange for Original Capital Securities where such
Original Capital Securities were acquired by such Participating Broker-Dealer
for its own account as a result of market-making or other trading activities.
Subject to certain provisions set forth in the Registration Agreement, the
Corporation and the Trust have agreed that this Prospectus, as it may be amended
or supplemented from time to time, may be used by a Participating Broker-Dealer
in connection with resales of such Exchange Capital Securities for a period
ending 180 days after the Expiration Date (subject to extension under certain
limited circumstances described below) or, if earlier, when all such Exchange
Capital Securities have been disposed of by such Participating Broker-Dealer.
See "Plan of Distribution." However, a Participating Broker-Dealer who intends
to use this Prospectus in connection with the resale of Exchange Capital
Securities received in exchange for Original Capital Securities pursuant to the
Exchange Offer must notify the Corporation or the Trust, or cause the
Corporation or the Trust to be notified, on or prior to the Expiration Date,
that it is a Participating Broker-Dealer. Such notice may be given in the space
provided for that purpose in the Letter of Transmittal or may be delivered to
the Exchange Agent at one of the addresses set forth herein under "-- Exchange
Agent." Any Participating Broker-Dealer who is an "affiliate" of the Corporation
or the Trust may not rely on such interpretive letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
In that regard, each Participating Broker-Dealer who surrenders Original
Capital Securities pursuant to the Exchange Offer will be deemed to have agreed,
by execution of the Letter of Transmittal, that upon receipt of notice from the
Corporation or the Trust of the occurrence of any event or the discovery of (i)
any fact which makes any statement contained or incorporated by reference in
this Prospectus untrue in any material respect or (ii) any fact which causes
this Prospectus to omit to state a material fact necessary in order to make the
statements contained or incorporated by reference herein, in light of the
circumstances under which they were made, not misleading, or (iii) of the
occurrence of certain other events specified in the Registration Agreement, such
Participating Broker-Dealer will suspend the sale of Exchange Capital Securities
(or the Exchange Guarantee or the Exchange Junior Subordinated Debt Securities,
as applicable) pursuant to this Prospectus until the Corporation or the Trust
has amended or supplemented this Prospectus to correct such misstatement or
omission and has furnished copies of the amended or supplemented Prospectus to
such Participating Broker-Dealer, or the Corporation or the Trust has given
notice that the sale of the Exchange Capital Securities (or the Exchange
Guarantee or the Exchange Junior Subordinated Debt Securities, as applicable)
may be resumed, as the case may be. If the Corporation or the Trust gives such
notice to suspend the sale of the Exchange Capital Securities (or the Exchange
Guarantee or the Exchange Junior Subordinated Debt Securities, as applicable),
it shall extend the 180-day period referred to above during which Participating
Broker-Dealers are entitled to use this Prospectus in connection with the resale
of Exchange Capital Securities by the number of days during the period from and
including the date of the giving of such notice to and including the date when
Participating Broker-Dealers shall have received copies of the amended or
supplemented Prospectus necessary to permit resales of the Exchange Capital
Securities or to and including the date on which the Corporation or the Trust
has given notice that the sale of Exchange Capital Securities (or the Exchange
Guarantee or the Exchange Junior Subordinated Debt Securities, as applicable)
may be resumed, as the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Original Capital Securities
may be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective, a written or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at one of its addresses set forth under "-- Exchange Agent" on or
prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Original Capital Securities to be withdrawn,
the aggregate principal amount of Original Capital Securities to be withdrawn,
and, if certificates for such Original Capital Securities have been tendered,
the name of the registered holder of the Original Capital Securities as set
forth on such certificates if different
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<PAGE> 36
from that of the person who tendered such Original Capital Securities. If
certificates representing Original Capital Securities have been delivered or
otherwise identified to the Exchange Agent, then prior to the physical release
of such certificates, the tendering holder must submit the serial numbers shown
on the particular certificates to be withdrawn and the signature on the notice
of withdrawal must be guaranteed by an Eligible Institution, except in the case
of Original Capital Securities tendered for the account of an Eligible
Institution. If Original Capital Securities have been tendered pursuant to the
procedures for book-entry transfer set forth in "-- Procedures for Tendering
Original Capital Securities -- Book-Entry Transfer," the notice of withdrawal
must specify the name and number of the account at DTC to be credited with the
withdrawal of Original Capital Securities. Withdrawals of tenders of Original
Capital Securities may not be rescinded. Original Capital Securities properly
withdrawn will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any subsequent time on or prior to the
Expiration Date by following any of the procedures described above under
"-- Procedures for Tendering Original Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Trust, in its sole
discretion, whose determination shall be final and binding on all parties.
Neither the Corporation, the Trust, any affiliates or assigns of the Corporation
or the Trust, the Exchange Agent nor any other person shall be under any duty to
give any notification of any irregularities in any notice of withdrawal or incur
any liability for failure to give any such notification. Any Original Capital
Securities which have been tendered but which are withdrawn will be returned to
the holder thereof promptly after withdrawal.
DISTRIBUTIONS ON EXCHANGE CAPITAL SECURITIES
Holders of Original Capital Securities whose Original Capital Securities
are accepted for exchange will not receive Distributions on such Original
Capital Securities and will be deemed to have waived the right to receive any
Distributions on such Original Capital Securities accumulated from and after
December 31, 1996. Accordingly, holders of Exchange Capital Securities (as of
the record date) for the payment of Distributions on June 15, 1997 will be
entitled to receive Distributions accumulated from and after December 31, 1996.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Corporation and the Trust will not be
required to accept for exchange, or to exchange, any Original Capital Securities
for any Exchange Capital Securities, and, as described below, may terminate the
Exchange Offer (whether or not any Original Capital Securities have theretofore
been accepted for exchange) or may waive any conditions to or amend the Exchange
Offer, if any of the following conditions have occurred or exists or have not
been satisfied:
(a) there shall occur a change in the current interpretation by the
staff of the Commission which permits the Exchange Capital Securities
issued pursuant to the Exchange Offer in exchange for Original Capital
Securities to be offered for resale, resold and otherwise transferred by
holders thereof (other than broker-dealers and any such holder which is an
"affiliate" of the Corporation or the Trust within the meaning of Rule 405
under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such
Exchange Capital Securities are acquired in the ordinary course of such
holders' business and such holders have no arrangement or understanding
with any person to participate in the distribution of such Exchange Capital
Securities; or
(b) any law, statute, rule or regulation shall have been adopted or
enacted which, in the judgment of the Corporation or the Trust, would
reasonably be expected to impair its ability to proceed with the Exchange
Offer; or
(c) a stop order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the Registration
Statement, or proceedings shall have been initiated or, to the knowledge of
the Corporation or the Trust, threatened for that purpose, or any
governmental approval
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has not been obtained, which approval the Corporation or the Trust shall,
in its sole discretion, deem necessary for the consummation of the Exchange
Offer as contemplated hereby.
(d) the Corporation determines in good faith (i) that there is a
reasonable likelihood that, or a material uncertainty exists as to whether,
consummation of the Exchange Offer would result in an adverse tax
consequence to the Trust or the Corporation and (ii) that such condition
exists on the 240th day following the Closing Date.
If the Corporation or the Trust determines in its sole and absolute
discretion that any of the foregoing events or conditions has occurred or exists
or has not been satisfied, it may, subject to applicable law, terminate the
Exchange Offer (whether or not any Original Capital Securities have theretofore
been accepted for exchange) or may waive any such condition or otherwise amend
the terms of the Exchange Offer in any respect. If such waiver or amendment
constitutes a material change to the Exchange Offer, the Corporation or the
Trust will promptly disclose such waiver or amendment by means of a prospectus
supplement that will be distributed to the registered holders of the Original
Capital Securities and will extend the Exchange Offer to the extent required by
Rule 14e-1 under the Exchange Act.
EXCHANGE AGENT
Bankers Trust Company has been appointed as Exchange Agent for the Exchange
Offer. Delivery of the Letters of Transmittal and any other required documents,
questions, requests for assistance, and requests for additional copies of this
Prospectus or of the Letter of Transmittal should be directed to the Exchange
Agent as follows:
<TABLE>
<S> <C> <C>
By Mail: By Overnight Mail or Courier: By Hand:
BT Services Tennessee, Inc. BT Services Tennessee, Inc. Bankers Trust Company
Reorganization Unit Corporate Trust & Agency Corporate Trust & Agency
P.O. Box 292737 Group Group
Nashville, Tennessee 37229-2737 Reorganization Unit Attn: Reorganization
648 Grassmere Park Road Department
Nashville, Tennessee 37211 Receipt & Delivery Window
123 Washington Street
1st Floor
New York, New York 10006
Facsimile Transmission Number: Confirm by Telephone: Information:
(615) 835-3701 (615) 835-3572 (800) 735-7777
</TABLE>
Delivery to other than the above addresses or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
The Corporation has agreed to pay the Exchange Agent reasonable and
customary fees for its services and will reimburse it for its reasonable
out-of-pocket expenses in connection therewith. The Corporation will also pay
brokerage houses and other custodians, nominees and fiduciaries the reasonable
out-of-pocket expenses incurred by them in forwarding copies of this Prospectus
and related documents to the beneficial owners of Original Capital Securities,
and in handling or tendering for their customers.
Holders who tender their Original Capital Securities for exchange will not
be obligated to pay any transfer taxes in connection therewith. If, however,
Exchange Capital Securities are to be delivered to, or are to be issued in the
name of, any person other than the registered holder of the Original Capital
Securities tendered, or if a transfer tax is imposed for any reason other than
the exchange of Original Capital Securities in connection with the Exchange
Offer, then the amount of any such transfer taxes (whether imposed on the
registered holder or any other persons) will be payable by the tendering holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
Neither the Corporation nor the Trust will make any payment to brokers,
dealers or other nominees soliciting acceptances of the Exchange Offer.
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DESCRIPTION OF EXCHANGE SECURITIES
DESCRIPTION OF EXCHANGE CAPITAL SECURITIES
Pursuant to the terms of the Declaration, the Issuer Trustees on behalf of
the Trust will issue the Exchange Capital Securities. The Exchange Capital
Securities will represent beneficial ownership interests in the Trust and the
holders thereof will be entitled to a preference in certain circumstances with
respect to Distributions and amounts payable on redemption of the Trust
Securities or liquidation of the Trust over the Common Securities, as well as
other benefits as described in the Declaration. See "-- Subordination of Common
Securities." The Declaration has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). This summary of certain provisions
of the Exchange Capital Securities, the Common Securities and the Declaration
does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, all the provisions of the Declaration, including the
definitions therein of certain terms. The form of the Declaration is available
upon request from the Issuer Trustees.
GENERAL. The Exchange Capital Securities will be limited to $100 million
aggregate Liquidation Amount at any one time outstanding. The Capital Securities
will rank pari passu, and payments will be made thereon pro rata, with the
Common Securities except as described under "-- Subordination of Common
Securities." Legal title to the Junior Subordinated Debt Securities will be held
by the Property Trustee on behalf of the Trust in trust for the benefit of the
holders of the Trust Securities. The Exchange Guarantee executed by the
Corporation for the benefit of the holders of the Exchange Capital Securities
(the "Exchange Guarantee") will be on a subordinated basis with respect to the
Exchange Capital Securities but will not guarantee payment of Distributions or
amounts payable on redemption of the Exchange Capital Securities or on
liquidation of the Trust when the Trust does not have funds on hand available to
make such payments. See "-- Description of Exchange Guarantee."
DISTRIBUTIONS. The Exchange Capital Securities represent beneficial
ownership interests in the Trust, and Distributions on each Capital Security
will be payable at the annual rate of 8.70% of the stated Liquidation Amount of
$1,000, and will be payable semi-annually in arrears on June 15 and December 15
of each year to the holders of the Exchange Capital Securities at the close of
business on the June 1 or December 1 (each, a "Record Date"), as the case may
be, next preceding the relevant Distribution Date (as defined herein).
Distributions on the Exchange Capital Securities will be cumulative.
Distributions will accumulate from the date of original issuance. The first
Distribution Date for the Exchange Capital Securities will be June 15, 1997. The
amount of Distributions payable for any period will be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
Distributions are payable on the Exchange Capital Securities is not a Business
Day (as defined herein), payment of the Distributions payable on such date will
be made on the next succeeding day that is a Business Day (and without any
additional Distributions or other payments in respect to any such delay) with
the same force and effect as if made on the date such payment was originally
payable (each date on which Distributions are payable in accordance with the
foregoing, a "Distribution Date"). A "Business Day" shall mean any day other
than a Saturday or a Sunday, or a day on which banking institutions in The City
of New York are authorized or required by law or executive order to remain
closed, or a day on which the corporate trust office of the Property Trustee or
the Debenture Trustee is closed for business.
So long as no Debenture Event of Default has occurred and is continuing,
the Corporation has the right under the Indenture to defer the payment of
interest on the Exchange Junior Subordinated Debt Securities at any time or from
time to time for a period not exceeding 10 consecutive semi-annual periods with
respect to each Extension Period, provided that no Extension Period may extend
beyond the Stated Maturity of the Junior Subordinated Debt Securities. As a
consequence of any such election, semi-annual Distributions on the Trust
Securities by the Trust will be deferred during any such Extension Period.
Distributions to which holders of the Trust Securities are entitled will
accumulate additional Distributions thereon at the rate per annum of 8.70%
thereof, compounded semi-annually from the relevant payment date for such
Distributions. The term "Distributions" as used herein shall include any such
additional Distributions. During any such Extension Period, the Corporation 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 Corporation's
capital stock (which includes
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<PAGE> 39
common and preferred stock), (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of, the
Corporation (including Other Debentures) that rank pari passu with or junior in
interest to the Junior Subordinated Debt Securities, or (iii) make any guarantee
payments with respect to any guarantee by the Corporation of the debt securities
of any subsidiary of the Corporation (including Other Guarantees) if such
guarantee ranks pari passu with or junior in interest to the Junior Subordinated
Debt Securities (other than (a) dividends or distributions in common stock of
the Corporation, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Guarantee, (d) purchases or
acquisitions of shares of the Corporation's common stock in connection with the
satisfaction by the Corporation of its obligations under any employee benefit
plan or any other contractual obligation of the Corporation (other than a
contractual obligation ranking pari passu with or junior to the Junior
Subordinated Debt Securities), (e) as a result of a reclassification of the
Corporation's capital stock or the exchange or conversion of one class or series
of the Corporation's capital stock for another class or series of the
Corporation's capital stock or, (f) the purchase of fractional interests in
shares of the Corporation's stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged).
Prior to the termination of any such Extension Period, the Corporation may
further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed 10 consecutive semi-annual periods or to
extend beyond the Stated Maturity of the Junior Subordinated Debt Securities.
Upon the termination of any such Extension Period and the payment of all amounts
then due, and subject to the foregoing limitations, the Corporation may elect to
begin a new Extension Period. The Corporation must give the Property Trustee,
the Administrative Trustees and the Debenture Trustee notice of its election of
any such Extension Period at least five Business Days prior to the earlier of
(i) the date the Distributions on the Capital Securities would have been payable
except for the election to begin such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to any automated quotation
system or to holders of such Exchange Capital Securities of the Record Date or
the date such Distributions are payable, but in any event not less than five
Business Days prior to such Record Date. There is no limitation on the number of
times that the Corporation may elect to begin an Extension Period. See
"-- Description of Exchange Junior Subordinated Debt Securities -- Option to
Extend Interest Payment Date" and "Certain United States Federal Income Tax
Consequences -- Interest Income and Original Issue Discount."
The Corporation has no current intention of exercising its right to defer
payments of interest on the Exchange Junior Subordinated Debt Securities.
The revenue of the Trust available for distribution to holders of the Trust
Securities will be limited to payments under the Exchange Junior Subordinated
Debt Securities in which the Trust will invest the proceeds from the issuance
and sale of the Trust Securities. See "-- Description of Exchange Junior
Subordinated Debt Securities -- General." If the Corporation does not make
interest payments on the Exchange Junior Subordinated Debt Securities, the
Property Trustee will not have funds available to pay Distributions on the Trust
Securities. The payment of Distributions (if and to the extent the Trust has
funds legally available for the payment of such Distributions and cash
sufficient to make such payments) is guaranteed by the Corporation on a limited
basis as set forth herein under "-- Description of Exchange Guarantee."
MANDATORY REDEMPTION. Upon the repayment in full at the Stated Maturity or
a redemption at any time in whole or in part of the Junior Subordinated Debt
Securities (other than following the distribution of the Junior Subordinated
Debt Securities to the holders of the Trust Securities), the proceeds from such
repayment or redemption shall be applied by the Property Trustee to redeem a
Like Amount of Trust Securities, upon not less than 30 nor more than 60 days'
notice of a date of redemption (the "Redemption Date"), at the applicable
Redemption Price, which shall be equal to (i) in the case of the repayment of
the Exchange Junior Subordinated Debt Securities at the Stated Maturity, the
Maturity Redemption Price (equal to the principal of, and accrued but unpaid
interest on, the Junior Subordinated Debt Securities), (ii) in the case of the
redemption of the Junior Subordinated Debt Securities prior to December 15, 2006
in connection with the occurrence of a Special Event, the Special Event
Redemption Price (equal to the Special Event Prepayment Price (as defined under
"-- Description of the Exchange Junior Subordinated Debt Securities --
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Special Event Prepayment") or (iii) in the case of the optional redemption of
the Junior Subordinated Debt Securities on or after December 15, 2006, the
Optional Redemption Price (equal to the Optional Prepayment Price (as defined
under "-- Description of Exchange Junior Subordinated Debt
Securities -- Optional Redemption"). If less than all of the Junior Subordinated
Debt Securities are to be repaid or redeemed on a Redemption Date, then the
proceeds from such repayment or redemption shall be allocated to the redemption
pro rata of the Trust Securities.
Redemption of the Junior Subordinated Debt Securities prior to Stated
Maturity may be subject to receipt of prior approval by the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Corporation will pay as
additional amounts on the Junior Subordinated Debt Securities the Additional
Sums.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by the Trust on the
outstanding Trust Securities shall not be reduced as a result of any additional
taxes, duties and other governmental charges to which the Trust has become
subject as a result of a Tax Event.
REDEMPTION PROCEDURES. Trust Securities shall be redeemed, if at all, at
the applicable Redemption Price with the proceeds from the contemporaneous
repayment or redemption of the Exchange Junior Subordinated Debt Securities.
Redemptions of the Trust Securities shall be made and the applicable Redemption
Price shall be payable on each Redemption Date only to the extent that the Trust
has funds on hand available for the payment of such applicable Redemption Price.
See also "-- Subordination of Common Securities."
If the Trust gives a notice of redemption in respect of the Exchange
Capital Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, to the extent funds are available, with respect to the Exchange Capital
Securities held in global form, the Property Trustee will deposit irrevocably
with DTC funds sufficient to pay the applicable Redemption Price and will give
DTC irrevocable instructions and authority to pay the applicable Redemption
Price to the holders of the Capital Securities. See "-- Form, Denomination,
Book-Entry Procedures and Transfer." With respect to the Exchange Capital
Securities held in certificated form, the Property Trustee, to the extent funds
are available, will irrevocably deposit with the paying agent for the Exchange
Capital Securities funds sufficient to pay the applicable Redemption Price and
will give such paying agent irrevocable instructions and authority to pay the
applicable Redemption Price to the holders thereof upon surrender of their
certificates evidencing the Exchange Capital Securities. See "-- Payment and
Paying Agency." Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date shall be payable to the holders of the Exchange Capital
Securities on the relevant Record Dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of the holders of the Exchange Capital
Securities will cease, except the right of the holders of the Exchange Capital
Securities to receive the applicable Redemption Price, but without interest on
such Redemption Price, and the Exchange Capital Securities will cease to be
outstanding. In the event that any date fixed for redemption of Capital
Securities is not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day. In the event
that payment of the applicable Redemption Price is improperly withheld or
refused and not paid either by the Trust or by the Corporation pursuant to the
Exchange Guarantee as described under "-- Description of Exchange Guarantee,"
Distributions on Exchange Capital Securities will continue to accrue at the then
applicable rate, from the Redemption Date originally established by the Trust to
the date such applicable Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the applicable Redemption Price.
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<PAGE> 41
Subject to applicable law (including, without limitation, United States
federal securities law), the Corporation or its subsidiaries may at any time and
from time to time purchase outstanding Capital Securities by tender, in the open
market or by private agreement.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities at its
registered address. Unless the Corporation defaults in payment of the applicable
Prepayment Price on, or in the repayment of, the Junior Subordinated Debt
Securities, on and after the Redemption Date, Distributions will cease to accrue
on the Trust Securities called for redemption.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT
SECURITIES. The Corporation will have the right at any time to terminate the
Trust and cause a Like Amount of the Junior Subordinated Debt Securities to be
distributed to the holders of the Trust Securities in liquidation of the Trust;
provided, however, that following such distribution of the Junior Subordinated
Debt Securities, the Corporation agrees to use its best efforts to maintain any
ratings of such Junior Subordinated Debt Securities by any nationally recognized
rating agency for so long as any such Junior Subordinated Debt Securities are
outstanding. Such right is subject to prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve.
Upon liquidation of the Trust and certain other events, the Junior
Subordinated Debt Securities may be distributed to holders of the Trust
Securities. Under current United States federal income tax law, a distribution
of Junior Subordinated Debt Securities upon the dissolution of the Trust would
not be a taxable event to holders of the Capital Securities. If, however, the
Trust is characterized for United States federal income tax purposes as an
association taxable as a corporation at the time of dissolution of the Trust,
the distribution of the Junior Subordinated Debt Securities may constitute a
taxable event to holders of Capital Securities. Moreover, upon the occurrence of
a Tax Event, a dissolution of the Trust in which holders of the Capital
Securities receive cash would be a taxable event to such holders. See "Certain
United States Federal Income Tax Consequences -- Distribution of Junior
Subordinated Debt Securities or Cash Upon Liquidation of the Trust."
The Trust shall automatically terminate upon the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Corporation;
(ii) the distribution of a Like Amount of the Junior Subordinated Debt
Securities to the holders of the Trust Securities if the Corporation, as
Depositor, has given written direction to the Property Trustee to terminate the
Trust (which direction is optional and, except as described above, wholly within
the discretion of the Corporation, as Depositor); (iii) redemption of all of the
Trust Securities as described under "-- Mandatory Redemption" above; (iv)
expiration of the term of the Trust; and (v) the entry of an order for the
dissolution of the Trust by a court of competent jurisdiction.
If an early termination occurs as described in clause (i), (ii), (iv) or
(v) above, the Trust shall be liquidated by the Issuer Trustees as expeditiously
as the Issuer Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to the holders of such Trust Securities a Like Amount of the Junior
Subordinated Debt Securities, unless such distribution would not be practical,
in which event such holders will be entitled to receive out of the assets of the
Trust available for distribution to holders, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, an amount equal to, in
the case of holders of Capital Securities, the aggregate of the Liquidation
Amount plus accumulated and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"). If such Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Capital Securities shall be paid on
a pro rata basis. The holder(s) of the Common Securities will be entitled to
receive distributions upon any such liquidation pro rata with the holders of the
Capital Securities, except that if a Debenture Event of Default has occurred and
is continuing, the Capital Securities shall have a priority over the Common
Securities. See "-- Subordination of Common Securities." If an early termination
occurs as described in clause (v) above, the Junior Subordinated Debt Securities
will be subject to optional redemption in whole (but not in part).
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"Like Amount" means (i) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Junior Subordinated Debt Securities to be contemporaneously
redeemed in accordance with the Indenture, allocated to the Trust Securities
based upon the relative Liquidation Amounts of such classes and the proceeds of
which will be used to pay the Redemption Price of the Trust Securities and (ii)
with respect to a distribution of Junior Subordinated Debt Securities to holders
of Trust Securities in connection with a dissolution or liquidation of the
Trust, Junior Subordinated Debt Securities having a principal amount equal to
the Liquidation Amount of the Trust Securities of the holder to whom such Junior
Subordinated Debt Securities are distributed.
If the Corporation elects not to redeem the Junior Subordinated Debt
Securities prior to maturity and the Trust is not liquidated and the Junior
Subordinated Debt Securities are not distributed to holders of the Trust
Securities, the Capital Securities will remain outstanding until the repayment
of the Junior Subordinated Debt Securities at the Stated Maturity.
After the liquidation date is fixed for any distribution of Junior
Subordinated Debt Securities to holders of the Trust Securities (i) the Capital
Securities will no longer be deemed to be outstanding, (ii) DTC or its nominee,
as the record holder of the Capital Securities, will receive a registered global
certificate or certificates representing the Junior Subordinated Debt Securities
to be delivered upon such distribution with respect to Capital Securities held
by DTC or its nominee and (iii) any certificates representing Capital Securities
not held by DTC or its nominee will be deemed to represent Junior Subordinated
Debt Securities having a principal amount equal to the Liquidation Amount of
such Capital Securities and bearing accrued and unpaid interest in an amount
equal to the accumulated and unpaid Distributions on such Capital Securities
until such certificates are presented to the Administrative Trustees or their
agent for cancellation, whereupon the Corporation will issue to such holder, and
the Debenture Trustee will authenticate, a certificate representing such Junior
Subordinated Debt Securities.
There can be no assurance as to the market prices for the Capital
Securities or the Junior Subordinated Debt Securities that may be distributed in
exchange for the Trust Securities if a dissolution and liquidation of the Trust
were to occur. Accordingly, the Capital Securities that an investor may
purchase, or the Junior Subordinated Debt Securities that the investor may
receive on dissolution and liquidation of the Trust, may trade at a discount to
the price that the investor paid to purchase the Capital Securities offered
hereby.
SUBORDINATION OF COMMON SECURITIES. Payment of Distributions on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro rata
to the holders of Trust Securities based on the Liquidation Amount of the Trust
Securities; provided, however, that if on any Distribution Date or Redemption
Date any Event of Default resulting from a Debenture Event of Default or an
Event of Default under the Declaration shall have occurred and be continuing, no
payment of any Distribution on, or applicable Redemption Price of, any of the
Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions on all of
the outstanding Capital Securities for all Distribution periods terminating on
or prior thereto, or, in the case of payment of the applicable Redemption Price,
the full amount of such Redemption Price on, all of the outstanding Capital
Securities, shall have been made or provided for, and all funds available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price of, the Capital Securities then due
and payable.
In the case of any Event of Default under the Declaration resulting from a
Debenture Event of Default, the Corporation as holder of the Common Securities
will be deemed to have waived any right to act with respect to any such Event of
Default until the effect of all such Events of Default have been cured, waived
or otherwise eliminated. Until all such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the holders of such Capital Securities and not on behalf of the Corporation
as holder of the Common Securities, and only the holders of the Capital
Securities will have the right to direct the Property Trustee to act on their
behalf.
EVENTS OF DEFAULT; NOTICE. Any one of the following events constitutes an
"Event of Default" under the Declaration (an "Event of Default") (whatever the
reason for such Event of Default and whether it shall be
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voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of a Debenture Event of Default (see
"-- Description of Exchange Junior Subordinated Debt
Securities -- Debenture Events of Default"); or
(ii) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(iii) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in the Declaration
(other than a covenant or warranty, a default in the performance of which
or the breach of which is addressed in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Issuer Trustees by the holders of at least 25% in aggregate
Liquidation Amount of the outstanding Capital 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" under the Declaration; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Corporation to
appoint a successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the Capital Securities, the
Administrative Trustees and the Corporation, as Depositor, unless such Event of
Default shall have been cured or waived. The Corporation, as Depositor, and the
Administrative Trustees are required to file annually with the Property Trustee
a certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under the Declaration.
If a Debenture Event of Default or an Event of Default under the
Declaration has occurred and is continuing, the Capital Securities shall have a
preference over the Common Securities as described above. See "-- Liquidation of
the Trust and Distribution of Junior Subordinated Debt Securities" and
"-- Subordination of Common Securities."
REMOVAL OF ISSUER TRUSTEES. Unless a Debenture Event of Default shall have
occurred and be continuing, any Issuer Trustee may be removed at any time by the
holder of the Common Securities. If a Debenture Event of Default has occurred
and is continuing, the Property Trustee and the Delaware Trustee may be removed
at such time by the holders of a majority in Liquidation Amount of the
outstanding Capital Securities. In no event will the holders of the Capital
Securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Corporation as the holder of the Common Securities. No resignation or removal of
an Issuer Trustee and no appointment of a successor trustee shall be effective
until the acceptance of appointment by the successor trustee in accordance with
the provisions of the Declaration.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE. Unless an Event of Default
shall have occurred and be continuing, at any time or times, for the purpose of
meeting the legal requirements of the Trust Indenture Act or of any jurisdiction
in which any part of the Trust's property may at the time be located, the
Corporation, as the holder of the Common Securities, and the Administrative
Trustees shall have power to appoint one or more persons either to act as a
co-trustee, jointly with the Property Trustee, of all or any part of such
Trust's property, or to act as separate trustee of any such property, in either
case with such powers as may be provided in the instrument of appointment, and
to vest in such person or persons in such capacity any property, title, right or
power deemed necessary or desirable, subject to the provisions of the
Declaration. In case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES. Any Person into which the
Property Trustee, the Delaware Trustee or any Administrative Trustee that is not
a natural person may be merged or converted or
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with which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which such Issuer Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee under the
Declaration, provided such Person shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST. The
Trust may not merge with or into, consolidate, amalgamate or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to any corporation or other Person, except as described below or as otherwise
set forth in the Declaration. The Trust may, at the request of the Corporation,
as Depositor, with the consent of the Administrative Trustees but without the
consent of the holders of the Capital Securities, the Property Trustee or the
Delaware Trustee, merge with or into, consolidate, amalgamate or be replaced by,
or convey, transfer or lease its properties and assets substantially as an
entirety to, a trust organized as such under the laws of any State; provided,
however, that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Capital Securities or (b)
substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Capital Securities rank in priority
with respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Corporation expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Junior Subordinated Debt Securities, (iii) the Successor
Securities are listed or traded, or any Successor Securities will be listed or
traded upon notification of issuance, on any national securities exchange or
other organization on which the Capital Securities are then listed or traded, if
any, (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Capital Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Corporation has
received an opinion from independent counsel to the Trust experienced in such
matters to the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Capital Securities (including
any Successor Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither the Trust nor such successor entity will be required to register as an
investment company under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and (viii) the Corporation or any permitted successor
or assignee owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of holders of 100% in
Liquidation Amount of the Trust Securities, consolidate, amalgamate, merge with
or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it, if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION. Except as provided below and
under "-- Description of Exchange Guarantee -- Amendments and Assignment" and as
otherwise required by law and the Declaration, the holders of the Capital
Securities will have no voting rights.
The Declaration may be amended from time to time by the Corporation, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Trust Securities, (i) to cure any ambiguity, correct or
supplement any provision in the Declaration that may be inconsistent with any
other provision, or to make any other provisions with respect to matters or
questions arising under the Declaration, which shall not be inconsistent with
the other provisions of the Declaration, or (ii) to modify, eliminate or add to
any provisions of the Declaration to such extent as shall be necessary to ensure
that the Trust will be classified for United States federal income tax purposes
as a grantor trust at all times that any Trust Securities are
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outstanding or to ensure that the Trust will not be required to register as an
"investment company" under the Investment Company Act; provided, however, that
in the case of clause (i), such action shall not adversely affect in any
material respect the interests of any holder of Trust Securities, and any
amendments of the Declaration shall become effective when notice thereof is
given to the holders of the Trust Securities. The Declaration may be amended by
the Issuer Trustees and the Corporation with (i) the consent of holders
representing not less than a majority (based upon Liquidation Amounts) of the
outstanding Trust Securities, and (ii) receipt by the Issuer Trustees of an
opinion of counsel to the effect that such amendment or the exercise of any
power granted to the Issuer Trustees in accordance with such amendment will not
affect the Trust's status as a grantor trust for United States federal income
tax purposes or the Trust's exemption from status as an "investment company"
under the Investment Company Act. In addition, without the consent of each
holder of Trust Securities, the Declaration may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date or (ii) restrict the right of a
holder of Trust Securities to institute suit for the enforcement of any such
payment on or after such date. The Exchange Capital Securities and any Original
Capital Securities which remain outstanding after consummation of the Exchange
Offer will vote together as a single class for purposes of determining whether
holders of the requisite percentage in outstanding Liquidation Amount thereof
have taken certain actions or exercised certain rights under the Declaration.
So long as any Junior Subordinated Debt Securities are held by the Trust,
the Issuer Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Property Trustee with respect to
the Junior Subordinated Debt Securities, (ii) waive any past default that is
waivable under Section 5.13 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Debt Securities shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Junior Subordinated Debt
Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Capital Securities; provided, however,
that where a consent under the Indenture would require the consent of each
holder of Junior Subordinated Debt Securities affected thereby, no such consent
shall be given by the Property Trustee without the prior consent of each holder
of the Capital Securities. The Issuer Trustees shall not revoke any action
previously authorized or approved by a vote of the holders of the Capital
Securities except by subsequent vote of such holders. The Property Trustee shall
notify each holder of Capital Securities of any notice of default with respect
to the Junior Subordinated Debt Securities. In addition to obtaining the
foregoing approvals of such holders of the Capital Securities, prior to taking
any of the foregoing actions, the Issuer Trustees shall obtain an opinion of
counsel experienced in such matters to the effect that the Trust will not be
classified as an association or as a publicly traded partnership taxable as a
corporation for United States federal income tax purposes on account of such
action.
Any required approval of holders of Exchange Capital Securities may be
given at a meeting of such holders convened for such purpose or pursuant to
written consent. The Property Trustee will cause a notice of any meeting at
which holders of Exchange Capital Securities are entitled to vote, or of any
matter upon which action by written consent of such holders is to be taken, to
be given to each holder of record of Exchange Capital Securities in the manner
set forth in the Declaration.
No vote or consent of the holders of Capital Securities will be required
for the Trust to redeem and cancel the Capital Securities in accordance with the
Declaration.
Notwithstanding that holders of the Capital Securities are entitled to vote
or consent under any of the circumstances described above, any of the Capital
Securities that are owned by the Corporation, the Issuer Trustees or any
affiliate of the Corporation or any Issuer Trustees, shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
EXPENSES AND TAXES. In the Indenture, the Corporation, as issuer of the
Junior Subordinated Debt Securities, has agreed to pay all debts and other
obligations (other than with respect to payments of Distributions, amounts
payable upon redemption and the Liquidation Amount of the Trust Securities) and
all
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costs and expenses of the Trust (including costs and expenses relating to the
organization of the Trust, the fees and expenses of the Issuer Trustees and the
costs and expenses relating to the operation of the Trust) and the offering of
the Capital Securities, and to pay any and all taxes and all costs and expenses
with respect to the foregoing (other than United States withholding taxes) to
which the Trust might become subject. The foregoing obligations of the
Corporation under the Indenture are for the benefit of, and shall be enforceable
by, any person to whom any such debts, obligations, costs, expenses and taxes
are owed (a "Creditor") whether or not such Creditor has received notice
thereof. Any such Creditor may enforce such obligations of the Corporation
directly against the Corporation, and the Corporation has irrevocably waived any
right or remedy to require that any such Creditor take any action against the
Trust or any other person before proceeding against the Corporation. The
Corporation has also agreed in the Indenture to execute such additional
agreement(s) as may be necessary or desirable to give full effect to the
foregoing.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER. The Exchange
Capital Securities initially will be represented by one or more Capital
Securities in registered, global form (collectively, the "Global Capital
Securities").
The Global Capital Securities will be deposited upon issuance with the
Property Trustee as custodian for DTC, in New York, New York, and registered in
the name of DTC or its nominee, in each case for credit to an account of a
direct or indirect participant in DTC as described below.
Except as set forth below, the Global Capital Securities may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Capital
Securities may not be exchanged for Capital Securities in certificated form
except in the limited circumstances described below. See "-- Exchange of
Book-Entry Capital Securities for Certificated Capital Securities."
DEPOSITARY PROCEDURES. DTC has advised the Trust and the Corporation as
follows: DTC is a limited purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the Uniform Commercial Code and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. DTC was created to hold securities for its participating organizations
(collectively, the "Participants") and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic book-entry changes to accounts of its Participants, thereby
eliminating the need for physical movement of certificates. Participants include
securities brokers and dealers (including the Initial Purchasers), banks, trust
companies, clearing corporations and certain other organizations. Indirect
access to DTC's system is also available to other entities such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (collectively,
the "Indirect Participants"). Persons who are not Participants may beneficially
own securities held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interest and transfer of ownership interest
of each actual purchaser of each security held by or on behalf of DTC are
recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Trust and the Corporation that, pursuant to
procedures established by it, (i) upon deposit of the Global Capital Securities,
DTC will credit the accounts of Participants designated by the Initial
Purchasers with portions of the principal amount of the Global Capital
Securities and (ii) ownership of such interests in the Global Capital Securities
will be shown on, and the transfer of ownership thereof will be effected only
through, records maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other owners of
beneficial interests in the Global Capital Securities).
Investors in the Global Capital Securities may hold their interests therein
directly through DTC, if they are Participants in DTC, or indirectly through
organizations which are Participants in such system. All interests in a Global
Capital Security will be subject to the procedures and requirements of DTC. The
laws of some states require that certain persons take physical delivery in
certificated form. Consequently, the ability to transfer beneficial interests in
a Global Capital Security to such persons will be limited to that extent.
Because DTC can act only on behalf of Participants, which in turn act on behalf
of Indirect Participants and certain
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banks, the ability of a person having beneficial interests in a Global Capital
Security to pledge such interests to persons or entities that do not participate
in the DTC system, or otherwise take actions in respect of such interests, may
be affected by the lack of a physical certificate evidencing such interests. For
certain other restrictions on the transferability of the Capital Securities, see
"-- Exchange of Book-Entry Capital Securities for Certificated Capital
Securities."
EXCEPT AS DESCRIBED BELOW, OWNERS OF BENEFICIAL INTERESTS IN THE GLOBAL
CAPITAL SECURITIES WILL NOT BE ENTITLED TO HAVE CAPITAL SECURITIES REGISTERED IN
THEIR NAMES, WILL NOT RECEIVE OR BE ENTITLED TO RECEIVE PHYSICAL DELIVERY OF
CAPITAL SECURITIES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE
REGISTERED OWNERS OR HOLDERS THEREOF UNDER THE DECLARATION FOR ANY PURPOSE.
Payments in respect of the Global Capital Security registered in the name
of DTC or its nominee will be payable by the Property Trustee to DTC or its
nominee as the registered holder under the Declaration by wire transfer in
immediately available funds on each interest payment date. Under the terms of
the Declaration, the Property Trustee will treat the persons in whose names the
Capital Securities, including the Global Capital Securities, are registered as
the owners thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. Consequently, neither the Property Trustee nor
any agent thereof has or will have any responsibility or liability for (i) any
aspect of DTC's records or any Participant's or Indirect Participant's records
relating to, or payments made on account of, beneficial ownership interests in
the Global Capital Securities, or for maintaining, supervising or reviewing any
of DTC's records or any Participant's or Indirect Participant's records relating
to the beneficial ownership interests in the Global Capital Securities, or (ii)
any other matter relating to the actions and practices of DTC or any of its
Participants or Indirect Participants.
DTC has advised the Trust and the Corporation that its current practice,
upon receipt of any payment in respect of securities such as the Capital
Securities, is to credit the accounts of the relevant Participants with the
payment on the payment date, in amounts proportionate to their respective
holdings in Liquidation Amount of beneficial interests in the Global Capital
Security, as shown on the records of DTC, unless DTC has reason to believe it
will not receive payment on such payment date. Payments by the Participants and
the Indirect Participants to the beneficial owners of Capital Securities
represented by Global Capital Securities held through such Participants will be
governed by standing instructions and customary practices and will be the
responsibility of the Participants or the Indirect Participants and will not be
the responsibility of DTC, the Property Trustee or the Trust. Neither the Trust
nor the Property Trustee will be liable for any delay by DTC or any of its
Participants in identifying the beneficial owners of the Capital Securities, and
the Trust and the Property Trustee may conclusively rely on and will be
protected in relying on instructions from DTC or its nominee for all purposes.
Interests in the Global Capital Securities will trade in DTC's Same-Day
Funds Settlement System and secondary market trading activity in such interests
will therefore settle in immediately available funds, subject in all cases to
the rules and procedures of DTC and its Participants. Transfers between
Participants in DTC will be effected in accordance with DTC's procedures, and
will be settled in same-day funds.
DTC has advised the Trust and the Corporation that it will take any action
permitted to be taken by a holder of Exchange Capital Securities (including,
without limitation, the presentation of Capital Securities for exchange as
described below) only at the direction of one or more Participants to whose
account with DTC interests in the Global Capital Securities are credited and
only in respect of such portion of the aggregate Liquidation Amount of the
Capital Securities represented by the Global Capital Securities as to which such
Participant or Participants has or have given such direction. However, if there
is an Event of Default under the Declaration, DTC reserves the right to exchange
the Global Capital Securities for Exchange legended Capital Securities in
certificated form and to distribute such Exchange Capital Securities to its
Participants.
So long as DTC or its nominee is the registered owner of the Global Capital
Securities, DTC or such nominee, as the case may be, will be considered the sole
owner or holder of the Capital Securities represented by the Global Capital
Security for all purposes under the Declaration. The information in this section
concerning DTC and its book-entry system has been obtained from sources that the
Trust and the Corporation believe to be reliable, but neither the Trust nor the
Corporation takes responsibility for the accuracy thereof.
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Although DTC has agreed to the foregoing procedures to facilitate transfers
of interest in the Global Capital Securities among Participants in DTC, it is
under no obligation to perform or to continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the Trust nor the
Property Trustee will have any responsibility for the performance by DTC or its
Participants or Indirect Participants of their respective obligations under the
rules and procedures governing their operations.
EXCHANGE OF BOOK-ENTRY CAPITAL SECURITIES FOR CERTIFICATED CAPITAL
SECURITIES. A Global Capital Security is exchangeable for Exchange Capital
Securities in registered certificated form if (i) DTC (x) notifies the Trust
that it is no longer willing or able to properly discharge its responsibilities
with respect to the Capital Securities and the Corporation is unable to locate a
qualified successor, or (y) has ceased to be a "clearing agency" registered
under the Exchange Act; (ii) the Corporation at its option elects to terminate
the book-entry system through DTC; or (iii) there shall have occurred and be
continuing a Debenture Event of Default. In addition, beneficial interests in a
Global Capital Security may be exchanged by or on behalf of DTC for certificated
Exchange Capital Securities upon request by DTC, but only upon at least 20 days
prior written notice given to the Property Trustee in accordance with DTC's
customary procedures. In all cases, certificated Capital Securities delivered in
exchange for any Global Capital Security or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of DTC (in accordance with its customary procedures).
PAYMENT AND PAYING AGENCY. Payments in respect of the Exchange Capital
Securities held in global form shall be made to the Depositary, which shall
credit the relevant accounts at the Depositary on the applicable Distribution
Dates or in respect of the Capital Securities that are not held by the
Depositary, such payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on the register. The paying
agent (the "Paying Agent") shall initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Corporation. The Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Property Trustee,
the Administrative Trustees and the Corporation. In the event that the Property
Trustee shall no longer be the Paying Agent, the Administrative Trustees shall
appoint a successor (which shall be a bank or trust company acceptable to the
Administrative Trustees and the Corporation) to act as Paying Agent.
Bankers Trust Company has informed the Trust that so long as it serves as
paying agent for the Capital Securities, it anticipates that information
regarding Distributions on the Capital Securities, including payment date,
Record Date and redemption information, will be made available through Bankers
Trust Company at 1-800-735-7777.
RESTRICTIONS ON TRANSFER. The Exchange Capital Securities will be issued,
and may be transferred, only in a block having a Liquidation Amount of not less
than $100,000 (100 Exchange Capital Securities). The Exchange Capital Securities
will be issued, and may be transferred, only in minimum denominations of not
less than $1,000 and multiples of $1,000 in excess thereof. Any transfer, sale
or other disposition of Exchange Capital Securities in a denomination of less
than $1,000 shall be deemed to be void and of no legal effect whatsoever. Any
such transferee shall be deemed not to be the holder of such Exchange Capital
Securities for any purpose, including but not limited to the receipt of payments
on such Exchange Capital Securities, and such transferee shall be deemed to have
no interest whatsoever in such Exchange Capital Securities.
REGISTRAR AND TRANSFER AGENT. The Property Trustee will act as registrar
and transfer agent for the Exchange Capital Securities. Registration of
transfers of the Exchange Capital Securities will be effected without charge by
or on behalf of the Trust, but upon payment of any tax or other governmental
charges that may be imposed in connection with any transfer or exchange. The
Trust will not be required to register or cause to be registered the transfer of
the Exchange Capital Securities after they have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE. The Property Trustee, other
than during the occurrence and continuance of an Event of Default, undertakes to
perform only such duties as are specifically set forth in
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the Declaration and, during the existence of an Event of Default, must exercise
the same degree of care and skill as a prudent person would exercise or use in
the conduct of his or her own affairs. Subject to this provision, the Property
Trustee is under no obligation to exercise any of the powers vested in it by the
Declaration at the request of any holder of Trust Securities unless it is
offered reasonable indemnity against the costs, expenses and liabilities that
might be incurred thereby. If no Event of Default has occurred and is continuing
and the Property Trustee is required to decide between alternative causes of
action, construe ambiguous provisions in the Declaration or is unsure of the
application of any provision of the Declaration, and the matter is not one on
which holders of the Capital Securities or the Common Securities are entitled
under the Declaration to vote, then the Property Trustee shall take such action
as is directed by the Corporation and, if not so directed, shall take such
action as it deems advisable and in the best interests of the holders of the
Trust Securities and will have no liability except for its own bad faith,
negligence or willful misconduct.
MISCELLANEOUS. The Administrative Trustees are authorized and directed to
conduct the affairs of and to operate the Trust in such a way that the Trust
will not be deemed to be an "investment company" required to be registered under
the Investment Company Act or classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes, and so that the Junior Subordinated Debt Securities will be treated as
indebtedness of the Corporation for United States federal income tax purposes.
In this connection, the Corporation and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
certificate of trust of the Trust or the Declaration, that the Corporation and
the Administrative Trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the Trust Securities.
Holders of the Trust Securities have no preemptive or similar rights.
The Trust may not borrow money or issue debt or mortgage or pledge any of
its assets.
DESCRIPTION OF EXCHANGE JUNIOR SUBORDINATED DEBT SECURITIES
The Junior Subordinated Debt Securities were issued as a separate series
under a Junior Subordinated Indenture, as supplemented from time to time (as so
supplemented, the "Indenture"), between the Corporation and, Bankers Trust
Company, as trustee (the "Debenture Trustee"). The Indenture has been qualified
under the Trust Indenture Act. This summary of certain terms and provisions of
the Junior Subordinated Debt Securities and the Indenture does not purport to be
complete, and where reference is made to particular provisions of the Indenture,
such provisions, including the definitions of certain terms, some of which are
not otherwise defined herein, are qualified in their entirety by reference to
all of the provisions of the Indenture and those terms made a part of the
Indenture by the Trust Indenture Act.
GENERAL. Concurrently with the issuance of the Trust Securities, the Trust
invested the proceeds thereof in the Original Junior Subordinated Debt
Securities issued by the Corporation. The Exchange Junior Subordinated Debt
Securities, similarly to the Original Junior Subordinated Debt Securities, will
bear interest at the annual rate of 8.70% of the principal amount thereof,
payable semi-annually in arrears on June 15 and December 15 of each year (each,
an "Interest Payment Date"), commencing June 15, 1997, to the person in whose
name each Junior Subordinated Debt Security is registered, subject to certain
exceptions, at the close of business on the Business Day next preceding such
Interest Payment Date. It is anticipated that, until the liquidation of the
Trust, each Exchange Junior Subordinated Debt Security will be held by the Trust
for the benefit of the holders of the Trust Securities. The amount of interest
payable for any period will be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on the
Exchange Junior Subordinated Debt Securities is not a Business Day, then payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on the date such
payment was originally payable. Accrued interest that is not paid on the
applicable Interest Payment Date will bear additional interest on the amount
thereof (to the extent permitted by law) at the rate per annum of 8.70% thereof,
compounded semi-annually from the relevant Interest Payment Date. The term
"interest" as used
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herein shall include semi-annual interest payments, interest on semi-annual
interest payments not paid on the applicable Interest Payment Date and
Additional Sums (as defined herein), as applicable.
The Exchange Junior Subordinated Debt Securities will be issued pursuant to
the Indenture. Unless previously redeemed or repurchased, the Junior
Subordinated Debt Securities will mature on December 15, 2026.
The Exchange Junior Subordinated Debt Securities will be unsecured and will
rank junior and be subordinate in right of payment to all Senior Debt. Because
the Corporation is a bank holding company, the right of the Corporation to
participate in any distribution of assets of any subsidiary, including the Bank,
upon such subsidiary's liquidation or reorganization or otherwise (and thus the
ability of holders of the Capital Securities to benefit indirectly from such
distribution), is subject to the prior claims of creditors of such subsidiary,
except to the extent that the Corporation may itself be recognized as a creditor
of such subsidiary. Accordingly, the Exchange Junior Subordinated Debt
Securities will be subordinated to all Senior Debt and effectively subordinated
to all existing and future liabilities of the Corporation's subsidiaries, and
holders of Exchange Junior Subordinated Debt Securities should look only to the
assets of the Corporation for payments on the Exchange Junior Subordinated Debt
Securities. The Indenture does not limit the incurrence or issuance of other
secured or unsecured debt of the Corporation, including Senior Debt, whether
under the Indenture or any existing or other indenture that the Corporation may
enter into in the future or otherwise. See "-- Subordination."
The Exchange Junior Subordinated Debt Securities will rank pari passu with
the Original Junior Subordinated Debt Securities and all Other Debentures issued
under the Indenture and will be unsecured and subordinate and junior in right of
payment to the extent and in the manner set forth in the Indenture to all Senior
Debt of the Corporation. See "-- Subordination." The Corporation is a
non-operating holding company and almost all of the operating assets of the
Corporation and its consolidated subsidiaries are owned by such subsidiaries.
The Corporation relies primarily on dividends from such subsidiaries to meet its
obligations. The Corporation is a legal entity separate and distinct from its
present and future banking and non-banking affiliates. The Corporation's bank
subsidiaries are subject to certain restrictions imposed by federal law on any
extensions of credit to, and certain other transactions with, the Corporation
and certain other affiliates, and on investments in stock or other securities
thereof. Such restrictions prevent the Corporation and such other affiliates
from borrowing from such banks unless the loans are secured by various types of
collateral. In addition, payment of dividends to the Corporation by a bank
subsidiary is subject to ongoing review by banking regulators and is subject to
various statutory limitations and in certain circumstances requires approval by
banking regulatory authorities. The Other Debentures will be issuable in one or
more series pursuant to an indenture supplemental to the Indenture or a
resolution of the Corporation's Board of Directors or a committee thereof.
DENOMINATIONS, REGISTRATION AND TRANSFER. The Exchange Junior Subordinated
Debt Securities will be represented by one or more global certificates
registered in the name of Cede & Co. as the nominee of DTC if, and only if,
distributed to the holders of the Trust Securities. Until such time, the
Exchange Junior Subordinated Debt Securities will be registered in the name of
the Trust and held by the Property Trustee. Should the Exchange Junior
Subordinated Debt Securities be distributed to holders of the Trust Securities,
beneficial interests in the Exchange Junior Subordinated Debt Securities will be
shown on, and transfers thereof will be effected only through, records
maintained by Participants in DTC.
A global security shall be exchangeable for Exchange Junior Subordinated
Debt Securities registered in the names of persons other than Cede & Co. only if
(i) DTC notifies the Corporation that it is unwilling or unable to continue as a
depositary for such global security and no successor depositary shall have been
appointed, or if at any time DTC ceases to be a "clearing agency" registered
under the Exchange Act, at a time when DTC is required to be so registered to
act as such depositary, (ii) the Corporation in its sole discretion determines
that such global security shall be so exchangeable, or (iii) there shall have
occurred and be continuing a Debenture Event of Default. Any global security
that is exchangeable pursuant to the preceding sentence shall be exchangeable
for certificates registered in such names as DTC shall direct. It is
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expected that such instructions will be based upon directions received by DTC
from its Participants with respect to ownership of beneficial interests in such
global security. In the event that Exchange Junior Subordinated Debt Securities
are issued in certificated form, such Exchange Junior Subordinated Debt
Securities will be in minimum denominations of $1,000 and integral multiples of
$1,000 in excess thereof and may be transferred or exchanged only in such
minimum denominations and in the manner and at the offices described below.
Payments on Exchange Junior Subordinated Debt Securities represented by a
global security will be made to DTC, as the depositary for the Exchange Junior
Subordinated Debt Securities. In the event Exchange Junior Subordinated Debt
Securities are issued in certificated form, principal and interest will be
payable, the transfer of the Exchange Junior Subordinated Debt Securities will
be registrable, and Exchange Junior Subordinated Debt Securities will be
exchangeable for Exchange Junior Subordinated Debt Securities of other
denominations of a like aggregate principal amount, at the corporate office of
the Debenture Trustee in New York, New York, or at the offices of any paying
agent or transfer agent appointed by the Corporation, provided that payment of
interest may be made at the option of the Corporation by check mailed to the
address of the persons entitled thereto or by wire transfer. In addition, if the
Exchange Junior Subordinated Debt Securities are issued in certificated form,
the record dates for payment of interest will be the 1st day of the last month
of each semi-annual period.
For a description of DTC and the terms of the depositary arrangements
relating to payments, transfers, voting rights, redemptions and other notices
and other matters, see "Description of Exchange Securities -- Description of
Exchange Capital Securities -- Form, Denomination, Book-Entry Procedures and
Transfer." If the Exchange Junior Subordinated Debt Securities are distributed
to the holders of the Trust Securities upon the termination of the Trust, the
form, denomination, book-entry and transfer procedures with respect to the
Capital Securities as described under "Description of Exchange
Securities -- Description of Exchange Capital Securities -- Form, Denomination,
Book-Entry Procedures and Transfer," shall apply to the Exchange Junior
Subordinated Debt Securities mutatis mutandis.
PAYMENT AND PAYING AGENTS. Payment of principal of (and premium, if any)
and any interest on Exchange Junior Subordinated Debt Securities will be made at
the office of the Debenture Trustee in the City of New York or at the office of
such Paying Agent or Paying Agents as the Corporation may designate from time to
time, except that at the option of the Corporation payment of any interest may
be made (except in the case of Exchange Junior Subordinated Debt Securities in
global form), (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the register for Exchange Junior Subordinated
Debt Securities or (ii) by transfer to an account maintained by the person
entitled thereto as specified in such register, provided that proper transfer
instructions have been received by the relevant Record Date. Payment of any
interest on any Exchange Junior Subordinated Debt Security will be made to the
person in whose name such Exchange Junior Subordinated Debt Security is
registered at the close of business on the Record Date for such interest, except
in the case of defaulted interest. The Corporation may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent; however
the Corporation will at all times be required to maintain a Paying Agent in each
Place of Payment for the Exchange Junior Subordinated Debt Securities.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or
then held by the Corporation in trust, for the payment of the principal of (and
premium, if any) or interest on any Exchange Junior Subordinated Debt Security
and remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall, at the request of the Corporation,
be repaid to the Corporation and the holder of such Exchange Junior Subordinated
Debt Security shall thereafter look, as a general unsecured creditor, only to
the Corporation for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE. So long as no Debenture Event of
Default has occurred and is continuing, the Corporation has the right under the
Indenture to defer the payment of interest at any time or from time to time for
a period not exceeding 10 consecutive semi-annual periods with respect to each
Extension Period; provided, however, that no Extension Period may extend beyond
the Stated Maturity of the
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Exchange Junior Subordinated Debt Securities. At the end of an Extension Period,
the Corporation must pay all interest then accrued and unpaid on the Exchange
Junior Subordinated Debt Securities (together with interest thereon at the
annual rate of 8.70%, compounded semi-annually from the relevant Interest
Payment Date, to the extent permitted by applicable law). During an Extension
Period, interest will continue to accrue and holders of Exchange Junior
Subordinated Debt Securities (and holders of the Exchange Capital Securities
while Exchange Capital Securities are outstanding) will be required to accrue
interest income (in the form of OID) for United States federal income tax
purposes. See "Certain United States Federal Income Tax Consequences -- Interest
Income and Original Issue Discount."
During any Extension Period, the Corporation 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 Corporation's capital stock
(which includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation (including any Other Debentures) that rank pari
passu with or junior in interest to the Exchange Junior Subordinated Debt
Securities or (iii) make any guarantee payments with respect to any guarantee by
the Corporation of the debt securities of any subsidiary of the Corporation
(including any Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Exchange Junior Subordinated Debt Securities (other
than (a) dividends or distributions in common stock of the Corporation, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Guarantee, (d) purchases or acquisitions of shares of the
Corporation's common stock in connection with the satisfaction by the
Corporation of its obligations under any employee benefit plan or any other
contractual obligation of the Corporation (other than a contractual obligation
ranking pari passu with or junior to the Exchange Junior Subordinated Debt
Securities), (e) as a result of a reclassification of the Corporation's capital
stock or the exchange or conversion of one class or series of the Corporation's
capital stock for another class or series of the Corporation's capital stock, or
(f) the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged).
Prior to the termination of any Extension Period, the Corporation may
further extend such Extension Period; provided, however, that such extension
does not cause such Extension Period to exceed 10 consecutive semi-annual
periods or to extend beyond the Stated Maturity. Upon the termination of any
Extension Period and the payment of all interest then accrued and unpaid on the
Exchange Junior Subordinated Debt Securities (together with interest thereon at
the annual rate of 8.70%, compounded semi-annually, to the extent permitted by
applicable law), the Corporation may elect to begin a new Extension Period,
subject to the above requirements. No interest shall be due and payable during
an Extension Period, except at the end thereof. The Corporation must give the
Property Trustee, the Administrative Trustees and the Debenture Trustee notice
of its election of any Extension Period (or an extension thereof) at least five
Business Days prior to the earlier of (i) the date the Distributions on the
Trust Securities would have been payable except for the election to begin or
extend such Extension Period or (ii) the date the Administrative Trustees are
required to give notice to any automated quotation system or to holders of
Exchange Capital Securities of the Record Date or the date such Distributions
are payable, but in any event not less than five Business Days prior to such
Record Date. The Debenture Trustee shall give notice of the Corporation's
election to begin or extend a new Extension Period to the holders of the Capital
Securities. There is no limitation on the number of times that the Corporation
may elect to begin an Extension Period.
OPTIONAL REDEMPTION. The Exchange Junior Subordinated Debt Securities will
be redeemable, in whole or in part, at the option of the Corporation at any time
prior to Stated Maturity and on or after December 15, 2006, subject to the
Corporation having received prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal Reserve,
at a redemption price (the "Optional Prepayment Price") equal to the following
prices, expressed in percentages of the principal amount
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of the Exchange Junior Subordinated Debt Securities plus accrued but unpaid
interest to but excluding the date fixed for redemption. If redeemed during the
12-month period beginning December 15:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
------------------------------------------------ ----------
<S> <C>
2006............................................ 104.170
2007............................................ 103.753
2008............................................ 103.336
2009............................................ 102.919
2010............................................ 102.502
2011............................................ 102.085
2012............................................ 101.668
2013............................................ 101.251
2014............................................ 100.834
2015............................................ 100.417
</TABLE>
and at 100% on or after December 15, 2016.
SPECIAL EVENT PREPAYMENT. If a Special Event shall occur and be
continuing, the Corporation may, at its option and subject to receipt of prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve, prepay the Exchange Junior
Subordinated Debt Securities prior to December 15, 2006 and within 90 days after
the occurrence of such Special Event, in whole, but not in part, at a prepayment
price (the "Special Event Prepayment Price") equal to the greater of (i) 100% of
the principal amount of such Exchange Junior Subordinated Debt Securities or
(ii) the sum, as determined by a Quotation Agent, of the present values of the
principal amount and premium payable as part of the Redemption Price with
respect to an optional redemption of such Exchange Junior Subordinated Debt
Securities on December 15, 2006, together with scheduled payments of interest
accruing from the prepayment date to December 15, 2006 (the "Remaining Life"),
in each case discounted to the prepayment date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury
Rate, plus, in each case, accrued interest thereon to the date of prepayment.
See "-- Description of Exchange Capital Securities -- Liquidation of the Trust
and Distribution of Junior Subordinated Debt Securities."
"Special Event" means a Tax Event or a Regulatory Capital Event.
"Tax Event" means the receipt by the Corporation of an opinion of
independent counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed 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 or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
Issue Date, 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 Exchange
Junior Subordinated Debt Securities, (ii) interest payable by the Corporation on
the Exchange Junior Subordinated Debt Securities is not, or within 90 days of
the date of such opinion, will not be, deductible by the Corporation, 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 more than
a de minimis amount of other taxes, duties or other governmental charges.
A "Regulatory Capital Event" means that the Corporation shall have received
an opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Federal Reserve or (b)
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the Issue Date of the
Capital Securities, the Exchange Capital Securities do not constitute, or within
90 days of the date thereof, will not constitute, Tier 1 capital Exchange (or
its then equivalent); provided, however, that the distribution of the
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Exchange Junior Subordinated Debt Securities in connection with the liquidation
of the Trust by the Corporation and the treatment thereafter of the Exchange
Junior Subordinated Debt Securities as other than Tier 1 capital shall not in
and of itself constitute a Regulatory Capital Event unless such liquidation
shall have occurred in connection with a Tax Event.
"Adjusted Treasury Rate" means, with respect to any prepayment date, the
rate per annum equal to (i) the yield, under the heading which represents the
average for the immediately prior week, appearing in the most recently published
statistical release designated "H.15 (519)" or any successor publication which
is published weekly by the Federal Reserve and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the Remaining Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Adjusted
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such prepayment date, in each case calculated on the third Business Day
preceding the prepayment date, plus in each case (a) 1.25% if such prepayment
date occurs on or prior to December 15, 1997 and (b) 0.50% in all other cases.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life of the Exchange Junior Subordinated Debt Securities to be prepaid that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity with the Remaining Life of the Junior Subordinated Debt
Securities. If no United States Treasury security has a maturity which is within
a period from three months before to three months after December 15, 2006, the
two most closely corresponding United States Treasury securities shall be used
as the Comparable Treasury Issue, and the Adjusted Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding to the nearest
month using such securities.
"Quotation Agent" means the Reference Treasury Dealer set forth in clause
(i) below. "Reference Treasury Dealer" means: (i) Salomon Brothers Inc and its
respective successors; provided, however, that if the foregoing shall cease to
be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Corporation shall substitute therefor another Primary
Treasury Dealer; or (ii) any other Primary Treasury Dealer selected by the
Debenture Trustee after consultation with the Corporation.
"Comparable Treasury Price" means, with respect to any prepayment date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such prepayment date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (a) the average
of five Reference Treasury Dealer Quotations for such prepayment date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (b) if the Debenture Trustee obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such prepayment date.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Exchange Junior
Subordinated Debt Securities to be redeemed at its registered address.
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Unless the Corporation defaults in payment of the Special Event Prepayment
Price, on and after the prepayment date interest ceases to accrue on the
Exchange Junior Subordinated Debt Securities.
ADDITIONAL SUMS. If the Trust is required to pay any additional taxes,
duties or other governmental charges as a result of a Tax Event, the Corporation
will pay as additional amounts on the Exchange Junior Subordinated Debt
Securities such amounts as shall be required so that the Distributions payable
by the Trust shall not be reduced as a result of any such additional taxes,
duties or other governmental charges. The Corporation has covenanted in the
Indenture that, if and so long as (i) the Trust is the holder of all Exchange
Junior Subordinated Debt Securities and (ii) a Tax Event in respect of the Trust
has occurred and is continuing, to pay Additional Sums (as defined under
"-- Description of Exchange Capital Securities -- Mandatory Redemption") in
respect of such Trust Securities, the Corporation will pay to the Trust such
Additional Sums.
RESTRICTIONS ON CERTAIN PAYMENTS. The Corporation will also covenant that
it will 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
Corporation's capital stock (which includes common and preferred stock), (ii)
make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Corporation (including Other
Debentures) that rank pari passu with or junior in interest to the Exchange
Junior Subordinated Debt Securities or (iii) make any guarantee payments with
respect to any guarantee by the Corporation of the debt securities of any
subsidiary of the Corporation (including under Other Guarantees) if such
guarantee ranks pari passu with or junior in interest to the Exchange Junior
Subordinated Debt Securities (other than (a) dividends or distributions in
common stock of the Corporation, (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under the Guarantee, (d) purchases or
acquisitions of shares of the Corporation's common stock in connection with the
satisfaction by the Corporation of its obligations under any employee benefit
plan or any other contractual obligation of the Corporation (other than a
contractual obligation ranking pari passu with or junior in interest to the
Junior Subordinated Debt Securities), (e) as a result of a reclassification of
the Corporation's capital stock or the exchange or conversion of one class or
series of the Corporation's capital stock for another class or series of the
Corporation's capital stock or (f) the purchase of fractional interests in
shares of the Corporation's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged),
if at such time (i) there shall have occurred a Debenture Event of Default, (ii)
the Corporation shall be in default with respect to its payment of any
obligations under the Exchange Guarantee or (iii) the Corporation shall have
given notice of its election of an Extension Period as provided in the Indenture
and shall not have rescinded such notice, or such Extension Period, or any
extension thereof, shall be continuing.
MODIFICATION OF INDENTURE. From time to time the Corporation and the
Debenture Trustee may, without the consent of the holders of Exchange Junior
Subordinated Debt Securities, amend, waive or supplement the Indenture for
specified purposes, including, among other things, curing ambiguities, defects
or inconsistencies (provided that any such action does not materially adversely
affect the interest of the holders of Exchange Junior Subordinated Debt
Securities or the holders of the Exchange Capital Securities so long as they
remain outstanding) and qualifying, or maintaining the qualification of, the
Indenture under the Trust Indenture Act. The Indenture contains provisions
permitting the Corporation and the Debenture Trustee, with the consent of the
holders of not less than a majority in principal amount of Exchange Junior
Subordinated Debt Securities, to modify the Indenture in a manner affecting the
rights of the holders of Exchange Junior Subordinated Debt Securities; provided,
however, that no such modification may, without the consent of the holder of
each outstanding Exchange Junior Subordinated Debt Security so affected, (i)
change the Stated Maturity, or reduce the principal amount of the Exchange
Junior Subordinated Debt Securities, or reduce the rate or extend the time of
payment of interest thereon or (ii) reduce the percentage of principal amount of
Exchange Junior Subordinated Debt Securities, the holders of which are required
to consent to any such modification of the Indenture.
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In addition, the Corporation and the Debenture Trustee may execute, without
the consent of any holder of Exchange Junior Subordinated Debt Securities, any
supplemental Indenture for the purpose of creating any Other Debentures.
DEBENTURE EVENTS OF DEFAULT. The Indenture provides that any one or more
of the following described events with respect to the Exchange Junior
Subordinated Debt Securities that has occurred and is continuing constitutes a
"Debenture Event of Default":
(i) failure for 30 days to pay any interest on the Exchange Junior
Subordinated Debt Securities when due (subject to the deferral of any due
date in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on the Exchange
Junior Subordinated Debt Securities when due, whether at maturity, upon
redemption, by declaration of acceleration or otherwise; or
(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written notice
to the Corporation from the Debenture Trustee or the holders of at least
25% in aggregate outstanding principal amount of the Exchange Junior
Subordinated Debt Securities; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Corporation; or
(v) the voluntary or involuntary dissolution, winding-up or
termination of the Trust, except in connection with the distribution of the
Exchange Junior Subordinated Debt Securities to the holder of Trust
Securities in liquidation of the Trust, the redemption of all of the Trust
Securities of the Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration.
The holders of a majority in aggregate outstanding principal amount of the
Exchange Junior Subordinated Debt Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee. The Debenture Trustee or the holders of not less than 25% in
aggregate outstanding principal amount of the Exchange Junior Subordinated Debt
Securities may declare the principal due and payable immediately upon a
Debenture Event of Default and, should the Debenture Trustee or such holders of
Exchange Junior Subordinated Debt Securities fail to make such declaration, the
holders of at least 25% in aggregate Liquidation Amount of the Exchange Capital
Securities shall have such right. The holders of a majority in aggregate
outstanding principal amount of the Exchange Junior Subordinated Debt Securities
may annul such declaration and waive the default if the default (other than the
non-payment of the principal of the Exchange Junior Subordinated Debt Securities
which has become due solely by such acceleration) 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 Debenture Trustee.
Should the holders of Exchange Junior Subordinated Debt Securities fail to annul
such declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Exchange Capital Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Exchange Junior Subordinated Debt Securities affected thereby may, on behalf of
the holders of all the Exchange Junior Subordinated Debt Securities, waive any
past default, except a default in the payment of principal of (or premium, if
any) or interest (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 Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Exchange Junior
Subordinated Debt Security. Should the holders of such Exchange Junior
Subordinated Debt Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
Exchange Capital Securities shall have such right. The Corporation is required
to file annually with the Debenture Trustee a certificate as to whether or not
the Corporation is in compliance with all the conditions and covenants
applicable to it under the Indenture.
In case a Debenture Event of Default shall occur and be continuing, the
Property Trustee will have the right to declare the principal of and the
interest on the Exchange Junior Subordinated Debt Securities, and
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any other amounts payable under the Indenture, to be forthwith due and payable
and to enforce its other rights as a creditor with respect to the Exchange
Junior Subordinated Debt Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF EXCHANGE CAPITAL
SECURITIES. If a Debenture Event of Default has occurred and is continuing and
such event is attributable to the failure of the Corporation to pay interest or
principal on the Exchange Junior Subordinated Debt Securities on the date such
interest or principal is otherwise payable, a holder of Exchange Capital
Securities may institute a Direct Action. The Corporation may not amend the
Indenture to remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Exchange Capital Securities.
If the right to bring a Direct Action is removed following the Exchange Offer,
the Trust may become subject to the reporting obligations under the Securities
Exchange Act of 1934, as amended. Notwithstanding any payments made to a holder
of Exchange Capital Securities by the Corporation in connection with a Direct
Action, the Corporation shall remain obligated to pay the principal of or
interest on the Exchange Junior Subordinated Debt Securities, and the
Corporation shall be subrogated to the rights of the holder of such Capital
Securities with respect to payments on the Exchange Capital Securities to the
extent of any payments made by the Corporation to such holder in any Direct
Action.
The holders of the Exchange Capital Securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the Exchange Junior Subordinated Debt Securities
unless there shall have been an Event of Default under the Declaration. See
"-- Description of Exchange Capital Securities -- Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS. The
Indenture provides that the Corporation shall not consolidate with or merge with
or into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall consolidate with
or merge with or into the Corporation or convey, transfer or lease its
properties and assets substantially as an entirety to the Corporation, unless
(i) in case the Corporation consolidates with or merges with or into another
Person or conveys or transfers its properties and assets substantially as an
entirety to any Person, the successor Person is organized under the laws of the
United States or any state or the District of Columbia, and such successor
Person expressly assumes the Corporation's obligations on the Exchange Junior
Subordinated Debt Securities issued under the Indenture; (ii) immediately after
giving effect thereto, no Debenture Event of Default, and no event which, after
notice or lapse of time or both, would become a Debenture Event of Default,
shall have occurred and be continuing; (iii) such transaction is permitted under
the Declaration and the Exchange Guarantee and does not give rise to any breach
or violation of the Declaration or the Exchange Guarantee; and (iv) certain
other conditions as prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders of the
Exchange Junior Subordinated Debt Securities protection in the event of a highly
leveraged or other transaction involving the Corporation that may adversely
affect holders of the Exchange Junior Subordinated Debt Securities.
SUBORDINATION. In the Indenture, the Corporation has covenanted and agreed
that any Exchange Junior Subordinated Debt Securities issued thereunder shall be
subordinate and junior in right of payment to all Senior Debt to the extent
provided in the Indenture. Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in connection with any
insolvency or bankruptcy proceeding of the Corporation, the holders of Senior
Debt will first be entitled to receive payment in full of principal of (and
premium, if any) and interest, if any, on such Senior Debt before the holders of
Exchange Junior Subordinated Debt Securities will be entitled to receive or
retain any payment or distribution in respect thereof; provided, however, that
holders of Senior Debt shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the subordination
provisions of such Senior Debt to pay such amounts over to the obligees on trade
accounts payable or other liabilities arising in the ordinary course of
business.
In the event of the acceleration of the maturity of the Exchange Junior
Subordinated Debt Securities, the holders of all Senior Debt outstanding at the
time of such acceleration will first be entitled to receive payment in full of
all amounts due thereon (including any amounts due upon acceleration) before the
holders of the
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Exchange Junior Subordinated Debt Securities will be entitled to receive or
retain any payment in respect of the principal of (or premium, if any) or
interest, if any, on the Exchange Junior Subordinated Debt Securities; provided,
however, that holders of Senior Debt shall not be entitled to receive payment of
any such amounts to the extent that such holders would be required by the
subordination provisions of such Senior Debt to pay such amounts over to the
obligees on trade accounts payable or other liabilities arising in the ordinary
course of business.
In the event that the Corporation shall default in the payment of any
principal of (or premium, if any), or interest, if any, on any Senior Debt when
the same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, unless and
until such default shall have been cured or waived or shall have ceased to exist
or all Senior Debt shall have been paid, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made for principal, premium, if any, or interest, if any, on the Exchange Junior
Subordinated Debt Securities, or in respect of any redemption, repayment,
retirement, purchase or other acquisition of any of the Exchange Junior
Subordinated Debt Securities.
"Debt" means (i) the principal of (and premium, if any), and unpaid
interest on indebtedness for money borrowed, (ii) purchase money and similar
obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Corporation is responsible for the payment of such
indebtedness of others, (v) renewals, extensions and refunding of any such
indebtedness, (vi) interest or obligations in respect of any such indebtedness
accruing after the commencement of any insolvency or bankruptcy proceedings and
(vii) obligations associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts and
similar arrangements; provided, however, that Debt shall not include trade
accounts payable or accrued liabilities in the ordinary course of business.
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Corporation whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt of the
Corporation, whether incurred on or prior to the date of the Indenture or
thereafter incurred, unless, 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 in right of payment to the Exchange Junior
Subordinated Debt Securities or the Other Debentures; provided, however, that
Senior Debt shall not be deemed to include (i) any Debt of the Corporation
which, when incurred and without respect to any election under Section 1111(b)
of the United States Bankruptcy Code of 1978, as amended, was without recourse
to the Corporation, (ii) any Debt of the Corporation to any of its subsidiaries,
(iii) Debt to any employee of the Corporation, (iv) Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such Debt by the holders of the Exchange Junior Subordinated Debt Securities as
a result of the subordination provisions of the Indenture would be greater than
such payments otherwise would have been as a result of any obligation of such
holders of such debt to pay amounts over to the obligees on such trade accounts
payable or accrued liabilities arising in the ordinary course of business as a
result of subordination provisions to which such Debt is subject, and (v) any
other debt securities issued pursuant to the Indenture.
The Indenture places no limitation on the amount of Senior Debt that may be
incurred by the Corporation. The Corporation expects from time to time to incur
additional indebtedness constituting Senior Debt. At December 31, 1996, the
aggregate outstanding Senior Debt of the Corporation was $25 million.
RESTRICTIONS ON TRANSFER. The Exchange Junior Subordinated Debt Securities
will be issued, and may be transferred only, in minimum denominations of not
less than $1,000 and multiples of $1,000 in excess thereof. Any transfer, sale
or other disposition of Exchange Junior Subordinated Debt Securities in a
denomination of less than $1,000 shall be deemed to be void and of no legal
effect whatsoever. Any such transferee shall be deemed not to be the holder of
such Exchange Junior Subordinated Debt Securities for any purpose, including but
not limited to the receipt of payments on such Exchange Junior Subordinated Debt
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Securities, and such transferee shall be deemed to have no interest whatsoever
in such Exchange Junior Subordinated Debt Securities.
GOVERNING LAW. The Indenture and the Exchange Junior Subordinated Debt
Securities will be governed by and construed in accordance with the laws of the
State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE. Following the Exchange Offer
and the qualification of the Indenture under the Trust Indenture Act, the
Debenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Debenture Trustee is under no
obligation to exercise any of the powers vested in it by the Indenture at the
request of any holder of Exchange Junior Subordinated Debt Securities, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby. The Debenture Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Debenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
DESCRIPTION OF EXCHANGE GUARANTEE
The Exchange Guarantee will be executed and delivered by the Corporation
concurrently with the issuance by the Trust of the Exchange Capital Securities
for the benefit of the holders from time to time of such Capital Securities.
Bankers Trust Company will act as trustee (the "Guarantee Trustee") under the
Exchange Guarantee. The Exchange Guarantee has been qualified under the Trust
Indenture Act. This summary of certain provisions of the Exchange Guarantee does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the Exchange Guarantee, including the
definitions therein of certain terms, and the Trust Indenture Act. The Guarantee
Trustee will hold the Exchange Guarantee for the benefit of the holders of the
Exchange Capital Securities.
GENERAL. The Corporation will irrevocably agree to pay in full on a
subordinated basis, to the extent set forth herein, the Guarantee Payments (as
defined herein) to the holders of the Exchange Capital Securities, as and when
due, regardless of any defense, right of set-off or counterclaim that the Trust
may have or assert other than the defense of payment. The following payments
with respect to the Exchange Capital Securities, to the extent not paid by or on
behalf of the Trust (the "Guarantee Payments"), will be subject to the Exchange
Guarantee: (i) any accrued and unpaid Distributions required to be paid on the
Exchange Capital Securities, to the extent that the Trust has funds on hand
available therefor at such time, (ii) the applicable Redemption Price with
respect to Exchange Capital Securities called for redemption, to the extent that
the Trust has funds on hand available therefor at such time, or (iii) upon a
voluntary or involuntary dissolution, winding up or liquidation of the Trust
(other than in connection with the distribution of Exchange Junior Subordinated
Debt Securities to the holders of the Exchange Capital Securities or the
redemption of all of the Exchange Capital Securities) the lesser of (a) the
Liquidation Distribution, to the extent the Trust has funds available therefor
and (b) the amount of assets of the Trust remaining available for distribution
to holders of the Exchange Capital Securities upon liquidation of the Trust
after satisfaction of liabilities to creditors of the Trust as required by
applicable law. The Corporation's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Corporation to the
holders of the Exchange Capital Securities or by causing the Trust to pay such
amounts to such holders.
The Exchange Guarantee will be an irrevocable guarantee on a subordinated
basis of the Trust's obligations under the Exchange Capital Securities, although
it will apply only to the extent that the Trust has funds sufficient to make
such payments, and is not a guarantee of collection. If the Corporation does not
make interest payments on the Exchange Junior Subordinated Debt Securities held
by the Trust, the Trust will not be able to pay Distributions on the Exchange
Capital Securities and will not have funds legally available therefor.
The Exchange Guarantee will rank subordinate and junior in right of payment
to all Senior Debt. See "-- Status of the Exchange Guarantee." Because the
Corporation is a holding company, the right of the Corporation to participate in
any distribution of assets of any subsidiary, upon such subsidiary's liquidation
or reorganization or otherwise, is subject to the prior claims of creditors of
such subsidiary, except to the extent
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the Corporation may itself be recognized as a creditor of that subsidiary.
Accordingly, the Corporation's obligations under the Exchange Guarantee will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, including deposits, and claimants should look only
to the assets of the Corporation for payments thereunder. See "North Fork." The
Guarantee does not limit the incurrence or issuance of other secured or
unsecured debt of the Corporation, including Senior Debt, whether under the
Indenture, any other indenture that the Corporation may enter into in the future
or otherwise.
The Corporation has, through the Exchange Guarantee, the Declaration, the
Exchange Junior Subordinated Debt Securities and the Indenture, taken together,
fully, irrevocably and unconditionally guaranteed all of the Trust's obligations
under the Exchange Capital Securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
such guarantee. It is only the combined operation of these documents that has
the effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under the Exchange Capital Securities. See "Relationship
Among the Exchange Capital Securities, the Exchange Junior Subordinated Debt
Securities and the Exchange Guarantee."
STATUS OF THE EXCHANGE GUARANTEE. The Exchange Guarantee will constitute
an unsecured obligation of the Corporation and will rank subordinate and junior
in right of payment to all Senior Debt in the same manner as Exchange Junior
Subordinated Debt Securities.
The Exchange Guarantee will rank pari passu with all Other Guarantees
issued by the Corporation. The Exchange Guarantee will constitute a guarantee of
payment and not of collection (i.e., the guaranteed party may institute a legal
proceeding directly against the Corporation to enforce its rights under the
Exchange Guarantee without first instituting a legal proceeding against any
other person or entity). The Exchange Guarantee will be held for the benefit of
the holders of the Exchange Capital Securities. The Exchange Guarantee will not
be discharged except by payment of the Guarantee Payments in full to the extent
not paid by the Trust or upon distribution to the holders of the Exchange
Capital Securities of the Exchange Junior Subordinated Debt Securities. The
Guarantee does not place a limitation on the amount of additional Senior Debt
that may be incurred by the Corporation. The Corporation expects from time to
time to incur additional indebtedness constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT. Except with respect to any changes which do not
materially adversely affect the rights of holders of the Exchange Capital
Securities (in which case no vote will be required), the Exchange Guarantee may
not be amended without the prior approval of the holders of not less than a
majority of the aggregate Liquidation Amount of such outstanding Exchange
Capital Securities. The manner of obtaining any such approval will be as set
forth under "-- Description of Exchange Capital Securities -- Voting Rights;
Amendment of the Declaration." All guarantees and agreements contained in the
Exchange Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the holders
of the Exchange Capital Securities then outstanding.
EVENTS OF DEFAULT. An event of default under the Exchange Guarantee will
occur upon the failure of the Corporation to perform any of its payment or other
obligations thereunder; provided, however, that except with respect to a default
in payment of any Guarantee Payment, the Corporation shall have received notice
of default and shall not have cured such default within 60 days after receipt of
such notice. The holders of not less than a majority in aggregate Liquidation
Amount of the Exchange Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of the Exchange Guarantee or to direct the exercise
of any trust or power conferred upon the Guarantee Trustee under the Exchange
Guarantee.
Any holder of the Exchange Capital Securities may institute a legal
proceeding directly against the Corporation to enforce its rights under the
Exchange Guarantee without first instituting a legal proceeding against the
Trust, the Guarantee Trustee or any other person or entity.
The Corporation, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
Exchange Guarantee.
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CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS. The Exchange
Guarantee provides that the Corporation shall not consolidate with or merge with
or into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall consolidate with
or merge with or into the Corporation or convey, transfer or lease its
properties and assets substantially as an entirety to the Corporation, unless
(i) in case the Corporation consolidates with or merges with or into another
Person or conveys or transfers its properties and assets substantially as an
entirety to any Person, the successor Person is organized under the laws of the
United States or any state or the District of Columbia and such successor Person
expressly assumes the Corporation's obligations on the Exchange Guarantee; (ii)
immediately after giving effect thereto, no event of default under the Exchange
Guarantee, and no event which, after notice or lapse of time or both, would
become an event of default under the Exchange Guarantee, shall have happened and
be continuing; (iii) such transaction is permitted under the Declaration and the
Indenture and does not give rise to any breach or violation of the Declaration
or the Indenture; and (iv) certain other conditions as prescribed in the
Guarantee are met.
TERMINATION OF THE EXCHANGE GUARANTEE. The Exchange Guarantee will
terminate and be of no further force and effect upon full payment of the
applicable Redemption Price of the Exchange Capital Securities, upon full
payment of the amounts payable upon liquidation of the Trust or upon
distribution of Exchange Junior Subordinated Debt Securities to the holders of
the Exchange Capital Securities. The Exchange Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of the Exchange Capital Securities must restore payment of any sums paid under
the Exchange Capital Securities or the Exchange Guarantee.
GOVERNING LAW. The Exchange Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF ORIGINAL SECURITIES
The terms of the Original Securities are identical in all material respects
to the Exchange Securities, except that (i) the Original Securities have not
been registered under the Securities Act, are subject to certain restrictions on
transfer and are entitled to certain rights under the applicable Registration
Agreement (which rights will terminate upon consummation of the Exchange Offer,
except under limited circumstances), (ii) the Exchange Capital Securities will
not provide for any increase in the Distribution rate thereon and (iii) the
Exchange Junior Subordinated Debt Securities will not provide for any liquidated
damages thereon. The Original Securities provide that, in the event that a
registration statement relating to the Exchange Offer has not been filed by May
30, 1997 and been declared effective by June 30, 1997, or, in certain limited
circumstances, in the event a shelf registration statement (the "Shelf
Registration Statement") with respect to the resale of the Original Capital
Securities is not declared effective by June 30, 1997, then liquidated damages
will accrue at the rate of 0.25% per annum on the principal amount of the
Original Junior Subordinated Debt Securities and Distributions will accrue at
the rate of 0.25% per annum on the Liquidation Amount of the Original Capital
Securities, for the period from the occurrence of such event until such time as
such required Exchange Offer is consummated or any required Shelf Registration
Statement is effective. The Exchange Securities are not, and upon consummation
of the Exchange Offer the Original Securities will not be, entitled to any such
additional interest or Distributions. Accordingly, holders of Original Capital
Securities should review the information set forth under "Risk
Factors -- Consequences of a Failure to Exchange Original Capital Securities"
and "Description of Exchange Securities."
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RELATIONSHIP AMONG THE EXCHANGE CAPITAL SECURITIES, THE EXCHANGE JUNIOR
SUBORDINATED DEBT SECURITIES AND THE EXCHANGE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Exchange Capital
Securities (to the extent the Trust has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Corporation as and to the
extent set forth under "-- Description of Exchange Guarantee." Taken together,
the Corporation's obligations under the Exchange Junior Subordinated Debt
Securities, the Indenture, the Declaration and the Exchange Guarantee provide,
in the aggregate, a full, irrevocable and unconditional guarantee of payments of
Distributions and other amounts due on the Exchange Capital Securities. If and
to the extent that the Corporation does not make payments on the Exchange Junior
Subordinated Debt Securities, the Trust will not pay Distributions or other
amounts due on the Exchange Capital Securities. The Guarantee does not cover
payment of Distributions when the Trust does not have sufficient funds to pay
such Distributions. In such event, the remedy of a holder of Exchange Capital
Securities is to institute a Direct Action. The obligations of the Corporation
under the Exchange Guarantee are subordinate and junior in right of payment to
all Senior Debt.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Exchange Junior Subordinated Debt Securities, such payments will be sufficient
to cover Distributions and other payments due on the Exchange Capital
Securities, primarily because (i) the aggregate principal amount or Prepayment
Price of the Exchange Junior Subordinated Debt Securities will be equal to the
sum of the aggregate Liquidation Amount or Redemption Price, as applicable, of
the Trust Securities; (ii) the interest rate and interest and other payment
dates on the Exchange Junior Subordinated Debt Securities will match the
Distribution rate and Distribution and other payment dates for the Capital
Securities; (iii) the Corporation shall pay for all costs, expenses and
liabilities of the Trust except the Trust's obligations to holders of Trust
Securities under such Trust Securities; and (iv) the Declaration further
provides that the Trust will not engage in any activity that is not consistent
with the limited purposes thereof.
ENFORCEMENT RIGHTS OF HOLDERS OF EXCHANGE CAPITAL SECURITIES
A holder of any Exchange Capital Security may institute a legal proceeding
directly against the Corporation to enforce its rights under the Exchange
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the Trust or any other person or entity.
A default or event of default under any Senior Debt would not constitute a
default or Event of Default under the Declaration. However, in the event of
payment defaults under, or acceleration of, Senior Debt, the subordination
provisions of the Indenture provide that no payments may be made in respect of
the Exchange Junior Subordinated Debt Securities until such Senior Debt has been
paid in full or any payment default thereunder has been cured or waived. Failure
to make required payments on Exchange Junior Subordinated Debt Securities would
constitute an Event of Default under the Declaration.
LIMITED PURPOSE OF THE TRUST
The Capital Securities evidence a beneficial interest in the Trust, and the
Trust exists for the sole purpose of issuing the Trust Securities, investing the
proceeds of the Trust Securities in Junior Subordinated Debt Securities,
exchanging the Original Junior Subordinated Debt Securities and Trust Securities
in the Exchange Offer pursuant to the Indenture and engaging in other activities
necessary or incidental thereto.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
the Trust involving the liquidation of the Exchange Junior Subordinated Debt
Securities, after satisfaction of the liabilities of creditors of the Trust as
required by applicable law, the holders of the Trust Securities will be entitled
to
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receive, out of assets held by the Trust, the Liquidation Distribution in cash.
See "Description of Exchange Securities -- Description of Exchange Capital
Securities -- Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities." Upon any voluntary or involuntary liquidation or bankruptcy of
the Corporation, the Property Trustee, as holder of the Exchange Junior
Subordinated Debt Securities, would be a subordinated creditor of the
Corporation, subordinated in right of payment to all Senior Debt as set forth in
the Indenture, but entitled to receive payment in full of principal and
interest, before any stockholders of the Corporation receive payments or
distributions. Since the Corporation is the guarantor under the Exchange
Guarantee and has agreed to pay for all costs, expenses and liabilities of the
Trust (other than the Trust's obligations to the holders of its Trust
Securities), the positions of a holder of Exchange Capital Securities and a
holder of Exchange Junior Subordinated Debt Securities relative to other
creditors and to stockholders of the Corporation in the event of liquidation or
bankruptcy of the Corporation are expected to be substantially the same.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special tax
counsel to the Corporation and the Trust ("Tax Counsel"), the following summary
accurately describes certain of the material United States federal income tax
consequences that may be relevant to the purchase, ownership and disposition of
Capital Securities. Unless otherwise stated, this summary deals only with
Capital Securities held as capital assets by United States Holders (defined
below) who purchase the Capital Securities upon original issuance at their
original offering price. As used herein, a "United States Holder" means (i) a
person that is a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, (iii) an estate the income
of which is subject to United States federal income taxation regardless of its
source, or (iv) a trust the income of which is subject to United States federal
income tax regardless of its source; provided, however, that for taxable years
beginning after December 31, 1996 (or if a trustee so elects, for taxable years
ending after August 20, 1996), a "United States Holder" shall include any trust
if a court within the United States is able to exercise primary supervision over
the administration of such trust and one or more United States fiduciaries have
the authority to control all the substantial decisions of such trust. The tax
treatment of a holder may vary depending on his, her or its particular
situation. This summary does not address all the tax consequences that may be
relevant to a particular holder or to holders who may be subject to special tax
treatment, such as banks, real estate investment trusts, regulated investment
companies, insurance companies, dealers in securities or currencies, tax-exempt
investors or persons that will hold the Capital Securities as a position in a
"straddle," as part of a "synthetic security" or "hedge," as part of a
"conversion transaction" or other integrated investment, or as other than a
capital asset. In addition, this summary does not include any description or any
alternative minimum tax consequences or the tax laws of any state, local or
foreign government that may be applicable to a holder of Capital Securities.
This summary is based on the Internal Revenue Code of 1986, as amended, the
Treasury regulations promulgated thereunder and administrative and judicial
interpretations thereof, as of the date hereof, all of which are subject to
change, possibly on a retroactive basis. The authorities on which this summary
is based are subject to various interpretations and the opinions of Tax Counsel
are not binding on the Internal Revenue Service (the "IRS") or the courts,
either of which could take a contrary position. Moreover, no rulings have been
or will be sought from the IRS with respect to the transactions described
herein.
HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE CAPITAL
SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN, AND
OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES FEDERAL OR
OTHER TAX LAWS. FOR A DISCUSSION OF THE POSSIBLE REDEMPTION OF THE CAPITAL
SECURITIES UPON THE OCCURRENCE OF CERTAIN TAX EVENTS SEE "DESCRIPTION OF
EXCHANGE SECURITIES -- DESCRIPTION OF EXCHANGE CAPITAL SECURITIES -- LIQUIDATION
OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES."
EXCHANGE OF CAPITAL SECURITIES
The exchange of Original Securities for Exchange Securities should not be a
taxable event to holders for United States federal income tax purposes. The
exchange of Original Securities for Securities pursuant to the
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<PAGE> 64
Exchange Offer should not be treated as an "exchange" for United States federal
income tax purposes because the Exchange Securities should not be considered to
differ materially in kind or extent from the Original Securities and because the
exchange will occur by operation of the terms of the Original Securities.
Accordingly, the Exchange Capital Securities should have the same issue price as
the Original Capital Securities, and a holder should have the same adjusted tax
basis and holding period in the Exchange Capital Securities as the holder had in
the Original Capital Securities immediately before the exchange. Moreover, a
holder which had acquired Original Capital Securities with either market
discount or bond premium will be treated as holding Exchange Capital Securities
with the same amount of market discount or bond premium and will be required to
include such market discount in or deduct such bond premium from their income in
the same manner as on the Original Capital Securities. Holders are urged to
consult their tax advisors regarding the applicability of the market discount
and bond premium rules.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
In connection with the issuance of the Junior Subordinated Debt Securities,
Tax Counsel is of the opinion that, under current law, and based on certain
representations, facts and assumptions set forth in such opinion, the Junior
Subordinated Debt Securities will be classified as indebtedness for United
States federal income tax purposes. The Corporation, the Trust and the holders
of the Capital Securities (by acceptance of a beneficial interest in a Capital
Security) will agree to treat the Junior Subordinated Debt Securities as
indebtedness for all United States federal income tax purposes.
An opinion of the Tax Counsel is not binding on the IRS or the courts. No
rulings have been or are expected to be sought from the IRS with respect to the
transactions described herein and no assurance can be given that the IRS will
not take contrary positions. Moreover, no assurance can be given that the
opinions expressed herein will not be challenged by the IRS or, if challenged,
that the challenge will not be successful.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the Capital Securities, Tax Counsel is
of the opinion that, under current law and assuming full compliance with the
terms of the Declaration and other documents, and based upon certain facts and
assumptions contained in such opinion, the Trust will be classified as a grantor
trust for United States federal income tax purposes and not as an association
taxable as a corporation. Accordingly, for United States federal income tax
purposes, each holder of Capital Securities generally will be considered the
owner of an undivided interest in the Junior Subordinated Debt Securities and,
thus, will be required to include in its gross income its allocable share of
interest (or OID) on the Junior Subordinated Debt Securities.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under applicable Treasury regulations, a debt instrument will be deemed to
be issued with OID if there is more than a remote contingency that periodic
stated interest payments due on the instrument will not be timely paid. Because
the exercise by the Corporation of its option to defer the payment of stated
interest on the Capital Securities would prevent the Corporation from declaring
dividends on any class of equity, the Corporation believes that the likelihood
of its exercising the option is remote within the meaning of such regulations.
As a result, the Corporation intends to take the position, based on the advice
of Tax Counsel, that the Junior Subordinated Debt Securities will not be deemed
to be issued with OID. Accordingly, based upon this position, and except as set
forth below, stated interest on the Junior Subordinated Debt Securities
generally will be taxable to a holder as ordinary income at the time it is paid
or accrued in accordance with such holder's regular method of tax accounting.
If, however, the Corporation exercises its right to defer payments of
interest on the Junior Subordinated Debt Securities, the Junior Subordinated
Debt Securities will become OID instruments at such time and, consequently,
holders of the Capital Securities will be required to accrue their pro rata
share of OID (which will include both the stated interest and the de minimis
OID, if any, on the Junior Subordinated Debt Securities) on a daily basis during
the Extension Period, even though the Corporation will not pay such
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<PAGE> 65
interest until the end of the Extension Period, and even though some holders may
use the cash method of tax accounting. Moreover, thereafter the Junior
Subordinated Debt Securities will be taxed as OID instruments for as long as
they remain outstanding. Thus, even after the end of an Extension Period, all
holders would be required to continue to include their pro rata share of OID on
the Junior Subordinated Debt Securities in income on a daily basis, regardless
of their method of tax accounting and in advance of the receipt of the cash
attributable to such interest income. Under the OID economic accrual rules, a
holder would accrue an amount of interest income each year that approximates the
stated interest payments called for under the terms of the Junior Subordinated
Debt Securities, and actual cash payments of interest on the Junior Subordinated
Debt Securities would not be reported separately as taxable income. Any amount
of OID included in a holder's gross income (whether or not during an Extension
Period) with respect to a Capital Security will increase such holder's tax basis
in such Capital Security, and the amount of Distributions received by a holder
in respect of such accrued OID will reduce the tax basis of such Capital
Security.
The Treasury regulations described above have not yet been addressed in any
rulings or other interpretations by the IRS, and it is possible that the IRS
could take a contrary position. If the IRS were to assert successfully that the
stated interest on the Junior Subordinated Debt Securities was OID regardless of
whether the Corporation exercises its option to defer payments of interest on
such debt securities, all holders of Capital Securities would be required to
include such OID in income on a daily economic accrual basis as described above.
Because income on the Capital Securities will constitute interest or OID,
corporate holders of Capital Securities will not be entitled to a
dividends-received deduction with respect to any income recognized by such
holders with respect to the Capital Securities.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION OF
THE TRUST
As described under the caption "Description of Exchange
Securities -- Description of Exchange Capital Securities -- Liquidation of the
Trust and Distribution of Junior Subordinated Debt Securities," Junior
Subordinated Debt Securities may be distributed to holders in exchange for the
Capital Securities and in liquidation of the Trust. Under current law, such a
distribution would be non-taxable and will result in the holder receiving
directly its pro rata share of the Junior Subordinated Debt Securities
previously held indirectly through the Trust, with a holding period and
aggregate tax basis equal to the holding period and aggregate tax basis such
holder had in its Capital Securities before such distribution. If, however, the
liquidation of the Trust were to occur because the Trust is subject to United
States federal income tax with respect to income accrued or received on the
Junior Subordinated Debt Securities, the distribution of the Junior Subordinated
Debt Securities to holders would be a taxable event to the Trust and to each
holder, and a holder would recognize gain or loss as if the holder had exchanged
its Capital Securities for the Junior Subordinated Debt Securities it received
upon liquidation of the Trust. Moreover, a holder's holding period in the Junior
Subordinated Debt Securities would begin on the date such Junior Subordinated
Debt Securities were received.
A holder would accrue interest in respect of the Junior Subordinated Debt
Securities received from the Trust in the manner described above under
"-- Interest Income and Original Issue Discount."
Under certain circumstances described herein (see "-- Description of
Exchange Capital Securities -- Mandatory Redemption"), the Junior Subordinated
Debt Securities may be redeemed for cash, with the proceeds of such redemption
distributed to holders in redemption of their Capital Securities. Under current
law, such a redemption would constitute a taxable disposition of the redeemed
Capital Securities for United States federal income tax purposes, and a holder
would recognize gain or loss as if it sold such redeemed Capital Securities for
cash. See "-- Sales of Capital Securities."
SALES OF CAPITAL SECURITIES
A holder that sells Capital Securities (including a redemption of Capital
Securities by the Corporation) will recognize gain or loss equal to the
difference between the amount realized by the holder on the sale of the Capital
Securities (except to the extent that such amount realized is characterized as a
payment in respect of
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<PAGE> 66
accrued but unpaid interest on such holder's allocable share of the Junior
Subordinated Debt Securities that the holder had not included in gross income
previously) and the holder's adjusted tax basis in the Capital Securities sold
or redeemed. Such gain or loss generally will be a capital gain or loss, and
generally will be a long-term capital gain or loss if the Capital Securities
have been held for more than one year. Subject to certain limited exceptions,
capital losses cannot be applied to offset ordinary income for United States
federal income tax purposes.
PROPOSED TAX LEGISLATION
On February 6, 1997, as part of President Clinton's Fiscal 1998 Budget
Proposal, the United States Treasury Department proposed legislation that would,
among other things, deny an issuer a deduction for United States federal income
tax purposes for the payment of interest on instruments with characteristics
similar to the Junior Subordinated Debt Securities. If the proposed legislation
were enacted in its current form, it is not expected to apply to the Junior
Subordinated Debt Securities since the proposed effective date for this
provision will be the date of first committee action, which has not yet
occurred. There can be no assurances, however, that the proposed legislation, in
enacted, or similar legislation enacted after the date hereof would not
adversely affect the tax treatment of the Junior Subordinated Debt Securities,
resulting in a Tax Event, which may permit the Corporation, upon the receipt of
any required regulatory approval, to cause a redemption of the Trust Securities
at the Special Event Redemption Price by electing to prepay the Junior
Subordinated Debt Securities at the Special Event Prepayment Price. See
"Description of Exchange Securities -- Description of Exchange Capital
Securities -- Mandatory Redemption " and "Description of Exchange
Securities -- Description of Exchange Junior Subordinated Debt
Securities -- Special Event Prepayment." February 10, 1997, which will include a
proposal similar to the Proposed Legislation. On March 29, 1996, Senate Finance
Committee Chairman William V. Roth, Jr. and House Ways and Means Committee
Chairman Bill Archer issued the Joint Statement indicating their intent that the
Proposed Legislation, if adopted by either of the tax-writing committees of
Congress, would have an effective date that is no earlier than the date of
"appropriate Congressional action." In addition, subsequent to the publication
of the Joint Statement, Senator Daniel Patrick Moynihan and Representatives Sam
M. Gibbons and Charles B. Rangel wrote the Democrat Letters, which concurred
with the view expressed in the Joint Statement. If the principles contained in
the Joint Statement and the Democrat Letters were followed and if the Proposed
Legislation or similar legislation were to be enacted, such legislation would
not apply to the Junior Subordinated Debt Securities. There can be no assurance,
however, that legislation enacted after the date hereof will not adversely
affect the tax treatment of the Junior Subordinated Debt Securities or that such
treatment will not cause a Tax Event that may result in the redemption of the
Junior Subordinated Debt Securities for cash, in which event the holders of the
Capital Securities would receive cash in redemption of their Capital Securities.
See "Description of Exchange Securities -- Description of Exchange Capital
Securities -- Mandatory Redemption" and "-- Description of Exchange Junior
Subordinated Debt Securities -- Special Event Prepayment."
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is not a U.S. Holder
for United States federal income tax purposes.
Under present United States federal income tax laws: (i) payments by the
Trust or any of its paying agents to any holder of a Capital Security who or
which is a United States Alien Holder will not be subject to United States
federal withholding tax; provided that, (a) the beneficial owner of the Capital
Security does not actually or constructively own 10 percent or more of the total
combined voting power of all classes of stock of the Corporation entitled to
vote, (b) the beneficial owner of the Capital Security is not a controlled
foreign corporation that is related to the Corporation through stock ownership,
and (c) either (A) the beneficial owner of the Capital Security certifies to the
Trust or its agent, under penalties of perjury, that it is not a United States
holder and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "Financial
Institution"), and holds the Capital Security in such capacity, certifies to the
Trust or its agent,
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<PAGE> 67
under penalties of perjury, that such statement has been received from the
beneficial owner by it or by a Financial Institution between it and the
beneficial owner and furnishes the Trust or its agent with a copy thereof; and
(ii) a United States Alien Holder of a Capital Security will not be subject to
United States federal withholding tax on any gain realized upon the sale or
other disposition of a Capital Security.
INFORMATION REPORTING TO HOLDERS
Generally, income on the Capital Securities will be reported to holders on
Forms 1099, which forms should be mailed to holders of Capital Securities by
January 31 following each calendar year.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Capital Securities may
be subject to a "backup" withholding tax of 31 percent unless the holder
complies with certain identification requirements. Any withheld amounts will be
allowed as a credit against the holder's United States federal income tax,
provided the required information is provided to the IRS.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S
PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO
THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
CAPITAL SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN
AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGE IN UNITED STATES FEDERAL
OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
(a "Plan") subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an investment
in the Capital Securities. Accordingly, among other factors, the fiduciary
should consider whether the investment would satisfy the prudence and
diversification requirements of ERISA and would be consistent with the documents
and instruments governing the Plan.
Section 406 of ERISA and Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") prohibit Plans, as well as individual retirement
accounts and Keogh plans subject to Section 4975 of the Code (also "Plans"),
from engaging in certain transactions involving "plan assets" with persons who
are "parties in interest" under ERISA or "disqualified persons" under the Code
("Parties in Interest") with respect to such Plan. A violation of these
"prohibited transaction" rules may result in an excise tax or other liabilities
under ERISA and/or Section 4975 of the Code for such persons, unless exemptive
relief is available under an applicable statutory or administrative exemption.
Employee benefit plans that are governmental plans (as defined in Section 3(32)
of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and
foreign plans (as described in Section 4(b)(5) of ERISA) are not subject to the
requirements of ERISA or Section 4975 of the Code.
Under a regulation (the "Plan Asset Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Trust would be deemed to be
"plan assets" of a Plan for purposes of ERISA and Section 4975 of the Code if
"plan assets" of the Plan were used to acquire an equity interest in the Trust
and no exception were applicable under the Plan Assets Regulation. An "equity
interest" is defined under the Plan Assets Regulation as any interest in an
entity other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features and
specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the
assets of the Trust would not be deemed to be "plan assets" of investing Plans
if, immediately after the most recent acquisition of any equity interest in the
Trust, less than 25% of the value of each class of equity interest in the Trust
were held by Plans, other employee benefit plans not subject to ERISA or Section
4975 of the Code (such as governmental, church and foreign plans) and entities
holding assets deemed to be "plan assets" of any Plan (collectively,
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<PAGE> 68
"Benefit Plan Investors"). No assurance can be given by the Initial Purchaser
that the value of the Capital Securities held by Benefit Plan Investors will be
less than 25% of the total value of such Capital Securities at the completion of
the initial offering or thereafter, and no monitoring or other measures will be
taken with respect to the satisfaction of the conditions to this exception. All
of the Common Securities will be purchased and held directly or indirectly by
the Corporation.
Certain transactions involving the Trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a Plan if the Capital Securities were acquired with "plan
assets" of such Plan and assets of the Trust were deemed to be "plan assets" of
Plans investing in the Trust. For example, if the Corporation is a Party in
Interest with respect to an Investing Plan (either directly or by reason of its
ownership of the Trust or of any of the Corporation's other subsidiaries),
extensions of credit between the Corporation and the Trust (as represented by
the Junior Subordinated Debt Securities and the Guarantee) would likely be
prohibited by Section 406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the
Code, unless exemptive relief were available under an applicable administrative
exemption (see below).
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief for direct or indirect prohibited transactions
resulting from the purchase or holding of the Capital Securities, assuming that
assets of the Trust were deemed to be "plan assets" of Plans investing in the
Trust (see above). Those class exemptions are PTCE 96-23 (for certain
transactions determined by in-house asset managers), PTCE 95-60 (for certain
transactions involving insurance company general accounts), PTCE 91-38 (for
certain transactions involving bank collective investment funds), PTCE 90-1 (for
certain transactions involving insurance company pooled separate accounts) and
PTCE 84-14 (for certain transactions determined by independent qualified
professional asset managers).
Because the Capital Securities may be deemed to be equity interests in the
Trust for purposes of applying ERISA and Section 4975 of the Code, the Capital
Securities may not be purchased or held by any Plan, any entity whose underlying
assets include "plan assets" by reason of any Plan's investment in the entity (a
"Plan Asset Entity") or any person investing "plan assets" of any Plan, unless
such purchaser or holder is eligible for the exemptive relief available under
PTCE 96-23, 95-60, 91-38, 90-1 or 84-14. Any purchaser or holder of the Capital
Securities or any interest therein will be deemed to have represented by its
purchase and holding thereof that it either (a) is not a Plan or a Plan Asset
Entity and is not purchasing such securities on behalf of or with "plan assets"
of any Plan or (b) is eligible for the exemptive relief available under PTCE
96-23, 95-60, 91-38, 90-1 or 84-14 with respect to such purchase or holding. See
"Notice to Investors." Furthermore, to avoid certain prohibited transactions
under ERISA and the Code that could result under certain circumstances if the
Capital Securities are deemed to be such equity interests, each investing Plan,
by purchasing the Capital Securities, will be deemed to have directed the Trust
to invest in the Junior Subordinated Debentures and to have appointed the
Property Trustee.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is particularly
important that fiduciaries or other persons considering purchasing the Capital
Securities on behalf of or with "plan assets" of any Plan consult with their
counsel regarding the potential consequences if the assets of the Trust were
deemed to be "plan assets" and the availability of exemptive relief under PTCE
96-23, 95-60, 91-38, 90-1 or 84-14.
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Capital Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Capital Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Capital
Securities received in exchange for Capital Securities where such Capital
Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Trust and the Corporation have
agreed that, starting on the Expiration Date and ending on the close of business
on the 180th day following the Expiration Date, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with
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<PAGE> 69
any such resale. In addition, for a period ending 180 days after the Expiration
Date, all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus.
The Trust and the Corporation will not receive any proceeds from any sale
of Exchange Capital Securities by broker-dealers. Exchange Capital Securities
received by broker-dealers for their own account pursuant to the Exchange Offer
may be sold from time to time in one or more transactions, in the over-the-
counter market, in negotiated transactions, through the writing of options on
the Exchange Capital Securities or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Capital Securities. Any
broker-dealer that resells Exchange Capital Securities that were received by it
for its own account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Capital Securities may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
of any such resale of Exchange Capital Securities and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Trust and the
Corporation will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Trust and the Corporation have
agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the holders of the Capital Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Capital Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
VALIDITY OF EXCHANGE SECURITIES
The validity of the Exchange Guarantee and the Exchange Junior Subordinated
Debt Securities will be passed upon for the Corporation by Skadden, Arps, Slate,
Meagher & Flom LLP, New York, New York. Certain matters relating to United
States federal income tax consequences will be passed upon for the Corporation
by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York. Certain matters
of Delaware law relating to the validity of the Exchange Capital Securities will
be passed upon on behalf of the Trust by Skadden, Arps, Slate, Meagher & Flom
(Delaware), special Delaware counsel to the Trust.
EXPERTS
The consolidated financial statements of the Corporation and subsidiaries
as of December 31, 1996 and 1995 and for each of the years in the three year
period ended December 31, 1996, included in the Corporation's 1996 Form 10-K
incorporated by reference into this Prospectus, have been incorporated herein in
reliance upon the report of KPMG Peat Marwick LLP, independent auditors,
included in the Corporation's 1996 Form 10-K and incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing. The report of KPMG Peat Marwick LLP refers to various changes in
accounting as discussed in the notes to those statements.
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======================================================
NO DEALER, SALESMAN OR ANY OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THIS EXCHANGE
OFFER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR THE TRUST. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE CORPORATION OR THE TRUST SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 7
Incorporation of Certain Documents by
Reference........................... 8
Summary............................... 9
Risk Factors.......................... 16
Ratios of Earnings to Fixed Charges... 22
North Fork Capital Trust I............ 23
North Fork............................ 24
Selected Historical Financial
Information......................... 25
Capitalization........................ 27
Accounting Treatment.................. 28
The Exchange Offer.................... 28
Description of Exchange Securities.... 37
Description of Original Securities.... 60
Relationship Among the Exchange
Capital Securities, the Exchange
Junior Subordinated Debt Securities
and the Exchange Guarantee.......... 61
Certain United States Federal Income
Tax Consequences.................... 62
ERISA Considerations.................. 66
Plan of Distribution.................. 67
Validity of Exchange Securities....... 68
Experts............................... 68
</TABLE>
======================================================
======================================================
$100,000,000
NORTH FORK CAPITAL TRUST I
OFFER TO EXCHANGE ITS
8.70% EXCHANGE CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000
PER EXCHANGE CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933
FOR ANY AND
ALL OF ITS OUTSTANDING
8.70% ORIGINAL CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000
PER ORIGINAL CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
NORTH FORK
BANCORPORATION, INC.
------------------------
PROSPECTUS
------------------------
MAY 2, 1997
======================================================
<PAGE> 71
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As authorized by Section 145 of the General Corporation Law of the State of
Delaware, each director and officer of the Corporation may be indemnified by the
Corporation against expenses (including attorney's fees, judgments, fines and
amounts paid in settlement) actually and reasonably incurred in connection with
the defense or settlement of any threatened, pending or completed legal
proceedings in which he is involved by reason of the fact that he is or was a
director or officer of the Company if he acted in good faith and in a manner
that he reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, if he had no
reasonable cause to believe that his conduct was unlawful. If the legal
proceeding, however, is by or in the right of the Corporation, the director or
officer may not be indemnified in respect of any claim, issue or matter as to
which he shall have been adjudged to be liable for negligence or misconduct in
the performance of his duty to the Corporation unless a court determines
otherwise.
In addition, the Corporation maintains a directors' and officers' liability
policy.
Article Seventh of the Restated Certificate of Incorporation of the
Corporation and Article IX of the Bylaws of the Corporation provide that, to the
fullest extent permitted by law, directors of the Corporation will not be liable
for monetary damages to the Corporation or its stockholders for breaches of
their fiduciary duties.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <C> <S>
4.1 -- Indenture of North Fork Bancorporation, Inc. relating to the Junior
Subordinated Debt Securities*
4.2 -- Form of Certificate of Exchange Junior Subordinated Debt Securities*
4.3 -- Certificate of Trust of North Fork Capital Trust I*
4.4 -- Declaration of Trust of North Fork Capital Trust I*
4.5 -- Amended and Restated Declaration of Trust for North Fork Capital Trust I*
4.6 -- Form of Exchange Capital Security Certificate for North Fork Capital Trust I
4.7 -- Form of Exchange Guarantee Agreement of North Fork Bancorporation, Inc.
relating to the Exchange Capital Securities*
4.8 -- Registration Agreement*
5.1 -- Opinion and consent of Skadden, Arps, Slate, Meagher & Flom, LLP to North Fork
Bancorporation, Inc. as to legality of the Exchange Capital Securities to be
issued by North Fork Capital Trust I, the Exchange Junior Subordinated Debt
Securities and the Exchange Guarantee to be issued by North Fork
Bancorporation, Inc.
8.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom, LLP, special tax counsel, as
to certain federal income tax matters
12.1 -- Computation of ratio of earnings to fixed charges (excluding interest on
deposits)*
12.2 -- Computation of ratio of earnings to fixed charges (including interest on
deposits)*
23.1 -- Consent of KPMG Peat Marwick LLP*
23.3 -- Consent of Skadden, Arps, Slate, Meagher & Flom, LLP (included in Exhibit 5.1)
24 -- Power of Attorney of certain officers and directors of North Fork
Bancorporation, Inc.*
</TABLE>
II-1
<PAGE> 72
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <C> <S>
25.1 -- Form T-1 Statement of Eligibility of Bankers Trust Company to act as trustee
under the Indenture, the Amended and Restated Declaration of Trust of North
Fork Capital Trust I and the Exchange Guarantee for the benefit of the holders
of Exchange Capital Securities of North Fork Capital Trust I*
99.1 -- Form of Letter of Transmittal
99.2 -- Form of Notice of Guaranteed Delivery
99.3 -- Form of Exchange Agent Agreement
99.4 -- Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees
99.5 -- Form of Letter to Clients
</TABLE>
- ---------------
* Previously filed.
ITEM 22. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of a Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
undersigned Registrant pursuant to the provisions, or otherwise, each Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by each undersigned Registrant of
expenses incurred or paid by a director, officer of controlling person of each
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, each Registrant will, unless in the opinion of its
counsel the matter has been settled by the controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
The undersigned Registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired or involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-2
<PAGE> 73
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, North Fork
Bancorporation, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-4 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Melville, in the State of New York, as of the
2nd day of May, 1997.
NORTH FORK BANCORPORATION, INC.
By /s/ JOHN A. KANAS
------------------------------------
John A. Kanas
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------------ ------------
<C> <S> <C>
* President, Chief Executive Officer May 2, 1997
- ------------------------------------------ and Chairman of the Board
John A. Kanas
* Executive Vice President and Chief May 2, 1997
- ------------------------------------------ Financial Officer
Daniel M. Healy
* Vice Chairman of the Board May 2, 1997
- ------------------------------------------
John Bohlsen
* Vice Chairman of the Board May 2, 1997
- ------------------------------------------
Thomas M. O'Brien
* Director May 2, 1997
- ------------------------------------------
Irvin L. Cherashore
* Director May 2, 1997
- ------------------------------------------
Allan C. Dickerson
* Director May 2, 1997
- ------------------------------------------
Lloyd A. Gerard
* Director May 2, 1997
- ------------------------------------------
James F. Reeve
* Director May 2, 1997
- ------------------------------------------
James H. Rich, Jr.
</TABLE>
II-3
<PAGE> 74
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------------ ------------
<C> <S> <C>
* Director May 2, 1997
- ------------------------------------------
George H. Rowsom
* Director May 2, 1997
- ------------------------------------------
Raymond W. Terry
* Director May 2, 1997
- ------------------------------------------
Kurt R. Schmeller
*By: /s/ DANIEL M. HEALY
- ------------------------------------------
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 75
Pursuant to the requirements of the Securities Act of 1933, North Fork
Capital Trust I certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-4 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Melville, and State of New York, as of the 2nd
day of May, 1997.
NORTH FORK CAPITAL TRUST I
By: /s/ DANIEL M. HEALY
------------------------------------
Daniel M. Healy
as Administrative Trustee
By: /s/ JOHN N. DIGIACOMO
------------------------------------
John N. DiGiacomo
as Administrative Trustee
II-5
<PAGE> 76
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ --------------------------------------------------------------------------
<C> <C> <S> <C>
4.1 -- Indenture of North Fork Bancorporation, Inc. relating to the Junior
Subordinated Debt Securities*
4.2 -- Form of Certificate of Exchange Junior Subordinated Debt Securities*
4.3 -- Certificate of Trust of North Fork Capital Trust I*
4.4 -- Declaration of Trust of North Fork Capital Trust I*
4.5 -- Amended and Restated Declaration of Trust for North Fork Capital Trust I*
4.6 -- Form of Exchange Capital Security Certificate for North Fork Capital Trust
I
4.7 -- Form of Exchange Guarantee Agreement of North Fork Bancorporation, Inc.
relating to the Exchange Capital Securities*
4.8 -- Registration Agreement*
5.1 -- Opinion and consent of Skadden, Arps, Slate, Meagher & Flom, LLP to North
Fork Bancorporation, Inc. as to legality of the Exchange Capital
Securities to be issued by North Fork Capital Trust I, the Exchange Junior
Subordinated Debt Securities and the Exchange Guarantee to be issued by
North Fork Bancorporation, Inc.
8.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom, LLP, special tax counsel,
as to certain federal income tax matters
12.1 -- Computation of ratio of earnings to fixed charges (excluding interest on
deposits)*
12.2 -- Computation of ratio of earnings to fixed charges (including interest on
deposits)*
23.1 -- Consent of KPMG Peat Marwick LLP*
23.3 -- Consent of Skadden, Arps, Slate, Meagher & Flom, LLP (included in Exhibit
5.1)
24 -- Power of Attorney of certain officers and directors of North Fork
Bancorporation, Inc.*
25.1 -- Form T-1 Statement of Eligibility of Bankers Trust Company to act as
trustee under the Indenture, the Amended and Restated Declaration of Trust
of North Fork Capital Trust I and the Exchange Guarantee for the benefit
of the holders of Exchange Capital Securities of North Fork Capital Trust
I*
99.1 -- Form of Letter of Transmittal
99.2 -- Form of Notice of Guaranteed Delivery
99.3 -- Form of Exchange Agent Agreement
99.4 -- Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees
99.5 -- Form of Letter to Clients
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
Exhibit 4.6
IF THE EXCHANGE CAPITAL SECURITIES CERTIFICATE IS TO BE A
GLOBAL SECURITIES CERTIFICATE, INSERT--[This Exchange Capital Securities
Certificate is a Global Capital Securities Certificate within the meaning of the
Amended and Restated Declaration of Trust (the "Declaration of Trust") and is
registered in the name of The Depository Trust Company (the "Depositary") or a
nominee of the Depositary. This Exchange Capital Securities Certificate is
exchangeable for Exchange Capital Securities Certificates registered in the name
of a person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration of Trust, and no transfer of this
Exchange Capital Securities Certificate (other than a transfer of this Exchange
Capital Securities Certificate as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in the limited circumstances
described in the Declaration of Trust.
Unless this Exchange Capital Securities Certificate is
presented by an authorized representative of The Depositary Trust Company (55
Water Street, New York, New York) to North Fork Capital Trust I or its agent for
registration of transfer, exchange or payment, and any Exchange Capital
Securities Certificate issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depositary Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
The Exchange Capital Securities are issued, and may be transferred, only in
blocks having a Liquidation Amount of not less than $100,000. Any transfer, sale
or other disposition of Exchange Capital Securities in a block having a
Liquidation Amount of less than $100,000 shall be deemed to be void and of no
legal effect whatsoever. Any such transferee shall be deemed not to be the
Holder of such Exchange Capital Securities for any purpose, including but not
limited to the receipt of Distributions on such Exchange Capital Securities, and
such transferee shall be deemed to have no interest whatsoever in such Exchange
Capital Securities.
<PAGE> 2
NO EMPLOYEE BENEFIT OR OTHER PLAN 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 (EACH, A "PLAN"),
NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS EXCHANGE CAPITAL SECURITIES
CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS COVERED
BY THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH
RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS EXCHANGE
CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT IT EITHER (A) IS NOT A PLAN
OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR
WITH "PLAN ASSETS" OF ANY PLAN, OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH
PURCHASE OR HOLDING.
2
<PAGE> 3
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER EXCHANGE CAPITAL SECURITIES
CUSIP NO. 659435AC5
CERTIFICATE EVIDENCING EXCHANGE CAPITAL SECURITIES
OF
NORTH FORK CAPITAL TRUST I
8.70% EXCHANGE CAPITAL TRUST PASS-THROUGH SECURITIES
(TRUPS)(SM)
(LIQUIDATION AMOUNT $1,000 PER EXCHANGE CAPITAL SECURITY)
North Fork Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of _________ ( ) Exchange
Capital Securities of the Trust representing an undivided beneficial interest in
the assets of Trust and has designated North Fork Capital Trust I 8.70% Exchange
Capital Trust Pass-through Securities(SM) (Liquidation Amount $1,000 per
Exchange Capital Security) (the "Exchange Capital Securities"). The Exchange
Capital Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in Section 5.05 of
the Declaration of Trust (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Exchange Capital Securities are set forth in, and this certificate and the
Exchange Capital Securities presented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Declaration of Trust of the Trust dated as of December 31, 1996, as the same
may be amended from time to time (the "Declaration of Trust") among North Fork
Bancorporation, Inc., as Depositor, Bankers Trust Company, as Property Trustee,
Bankers Trust (Delaware), as Delaware Trustee and the Administrative Trustees
named therein, including the designation of the terms of Exchange Capital
Securities as set forth therein. The Holder is entitled to the benefits of the
Exchange Guarantee entered into by North Fork Bancorporation, Inc., a
Delaware corporation, and Bankers Trust Company, as Guarantee trustee, dated
as of _____ ___, 1997, (the "Guarantee"), to the extent provided
3
<PAGE> 4
therein. The Trust will furnish a copy of the Declaration of Trust and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this Certificate this __ day of ________, ___.
NORTH FORK CAPITAL TRUST I
by
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
Authorized Signatory
4
<PAGE> 5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Exchange Capital Security to:
(Insert assignee's social security or tax identification
number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Exchange Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: __________
Signature
(Sign exactly as your name appears on the other side of this Exchange
Capital Security Certificate)
The signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings
and loan associations and credit unions with
membership in an approved signature guarantee
medallion program), pursuant to SEC Rule 17Ad-15.
5
<PAGE> 1
May 2, 1997
North Fork Capital Trust I
North Fork Bancorporation, Inc.
c/o North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, NY 11747
Ladies and Gentlemen:
We have acted as special counsel to North Fork Bancorporation, Inc., a
Delaware corporation (the "Company"), and North Fork Capital Trust I, a business
trust formed under the Business Trust Act of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. L. Sec. 3801 et. seq.) (the "Trust"), in
connection with the preparation of the Registration Statement on Form S-4 filed
by the Company and the Trust with respect to the registration under the
Securities Act of 1933, as amended (the "Act"), of (i) the guarantee by the
Company of 100,000 of the Trust's 8.70% exchange capital trust pass-through
securities, liquidation amount of $1,000 per capital security (the "Exchange
Capital Securities") with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Exchange Guarantee"), (ii)
$100,000,000 principal amount of 8.70% Exchange Junior Subordinated Debt
Securities due December 15, 2026 (the "Exchange Junior Subordinated Debt
Securities") to be issued by the Company and (iii) the Exchange Capital
Securities.
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Act").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement on Form S-4 (File No. 333-24419) as filed by the Company and the Trust
with the Securities and Exchange Commission (the "Commission") on April 2, 1997
under the Act, and Amendment No. 1 thereto filed with the Commission on May 2,
1997 (such Registration Statement, as so amended, being hereinafter referred to
as the "Registration Statement"); (ii) the Certificate of Trust of the Trust
filed with the Secretary of State of the State of Delaware on December 23, 1996;
(iii) the Amended and Restated Declaration of Trust of the Trust, dated as of
December 31, 1996 (the "Declaration"), among Daniel M. Healy and John N.
DiGiacomo, as administrative trustees, Bankers Trust Company, as property
trustee (the "Property Trustee") and Bankers Trust (Delaware), as Delaware
trustee; (iv) the form of the Exchange Capital Securities and a specimen
certificate thereof; (v) an executed copy of the Registration Agreement, dated
as of December 31, 1996 (the "Registration Agreement"), among the Company, the
Trust and each of Salomon Brothers Inc and Keefe, Bruyette & Woods, Inc; (vi) an
executed copy of the Indenture, dated as of December 31, 1996 (the "Indenture"),
between Bankers Trust Company, as Indenture Trustee, and the Company; (vii) the
form of the Exchange Junior Subordinated Debt Securities and a specimen
certificate thereof; (viii) the Exchange Guarantee; and (ix) the Certificate of
Incorporation and Bylaws of the Company. We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Trust, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof on such
parties. As to any facts material to the opinions expressed herein which we did
not independently establish or verify, we have relied upon oral or written
statements and representations of officers, trustees and other representatives
of the Company, the Trust and others.
Members of our firm are admitted to the Bars of the States of New York and
Delaware, and we do not express any opinion as to the laws of any other
jurisdiction.
<PAGE> 2
Based upon and subject to the foregoing, we are of the opinion that when
the Registration Statement becomes effective:
1. The Exchange Guarantee has been duly authorized by the Company, and
when (i) the Declaration and Indenture have been qualified under the Trust
Indenture Act of 1939, as amended, and (ii) the Exchange Guarantee is duly
executed and delivered by the Company and issued in the exchange offer as
contemplated by the Registration Agreement and the Registration Statement,
the Exchange Guarantee will constitute a valid, legal and binding agreement
of the Company in favor of the holders of Exchange Capital Securities,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
2. The Exchange Junior Subordinated Debt Securities have been duly
authorized for issuance by the Company, and when (i) the declaration and
Indenture have been qualified under the Trust Indenture Act of 1939, as
amended, and (ii) the Exchange Junior Subordinated Debt Securities are duly
executed, authenticated and issued in accordance with the Indenture and
delivered and issued in the exchange offer as contemplated by the
Registration Agreement and the Registration Statement, the Exchange Junior
Subordinated Debt Securities will constitute valid and binding obligations
of the Company enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to creditors'
rights generally and (2) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
3. The Exchange Capital Securities have been duly authorized for
issuance by the Trust, and when (i) the Declaration has been qualified
under the Trust Indenture Act of 1939, as amended, and (ii) the Exchange
Capital Securities are duly executed, authenticated and issued in
accordance with the Declaration and delivered and issued in the exchange
offer as contemplated by the Registration Agreement and the Registration
Statement, the Exchange Capital Securities will represent, subject to the
qualifications set forth in paragraph 4 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and will entitle
the holders thereof to the benefits of the Declaration except to the extent
that enforcement of the Declaration may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (2) general
principles of equity regardless of whether enforcement is considered in a
proceeding in equity or at law.
4. The holders of the Exchange Capital Securities will be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware. We bring to your attention, however, that the
holders of the Exchange Capital Securities may be obligated, pursuant to
the Declaration, to (i) provide indemnity and/or security in connection
with, and pay taxes or governmental charges arising from, transfers of
Exchange Capital Securities and the issuance of replacement Exchange
Capital Securities and (ii) provide security and indemnity in connection
with requests of or directions to the Property Trustee and to exercise its
rights and powers under the Declaration.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. We also consent to the reference to our
firm under the caption "Validity of Exchange Securities" in the prospectus which
forms a part of the Registration Statement. In giving this consent, we do not
thereby admit that we are included in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission. This opinion is expressed as of the date hereof, and we disclaim any
undertaking to advise you of any subsequent changes in the facts stated or
assumed herein or of any subsequent changes in applicable law.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
<PAGE> 1
May 2, 1997
North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, New York 11747
North Fork Capital Trust I
275 Broad Hollow Road
Melville, New York 11747
Re: Registration Statement on Form S-4
Registration No. 333-24419
-----------------------------------------------------------------------
Ladies and gentlemen:
We have acted as special United States tax counsel for North Fork
Bancorporation, Inc., a Delaware corporation (the "Company"), and North Fork
Capital Trust I, a statutory business trust formed under the laws of the State
of Delaware (the "Trust"), in connection with the above-captioned registration
statement on Form S-4 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") for the purpose of (i) registering
(a) the guarantee by the Company of 100,000 of the Trust's 8.70% exchange
capital securities, liquidation amount of $1,000 per capital security (the
"Exchange Capital Securities") with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Exchange Guarantee"), (b)
$100,000,000 principal amount of 8.70% Exchange Junior Subordinated Debt
Securities due December 15, 2026 (the "Exchange Junior Subordinated Debt
Securities") to be issued by the Company and (c) an aggregate of 100,000 8.70%
Exchange Capital Trust Pass-through Securities (liquidation amount of $1,000 per
security) of the Trust (the "Exchange Capital Securities"), and (ii) exchanging
(a) such Exchange Guarantee for the previously issued guarantee, (b) such
Exchange Junior Subordinated Debt Securities for the previously issued junior
subordinated debt securities and (c) such Exchange Capital Securities for the
previously issued capital securities.
We hereby confirm that, although the discussion set forth under the heading
"CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS" in the Registration
Statement does not purport to discuss all possible United States federal income
tax consequences of the purchase, ownership and disposition of the Exchange
Capital Securities, in our opinion, such discussion constitutes, in all material
respects, a fair and accurate summary of the United States federal income tax
consequences of the purchase, ownership and disposition of the Exchange Capital
Securities, based upon current law. It is possible that contrary positions may
be taken by the Internal Revenue Service and that a court may agree with such
contrary positions.
This opinion is furnished to you solely for your benefit in connection with
the filing of the Registration Statement and, except as set forth below, is not
to be used, circulated, quoted or otherwise referred to for any other purpose or
relied upon by any other person for any purpose without our prior written
consent. We hereby consent to the use of our name under the heading "Validity of
Exchange Securities" and the filing of this opinion with the Commission as
Exhibit 8.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Commission promulgated thereunder. This opinion is
expressed as of the date hereof unless otherwise expressly stated and applies
only to the disclosure under the heading "CERTAIN UNITED STATES FEDERAL INCOME
TAX CONSIDERATIONS" set forth in the Registration Statement filed as of the date
hereof. We disclaim any undertaking to advise you of any subsequent changes of
the facts stated or assumed herein or any subsequent changes in applicable law.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
<PAGE> 1
LETTER OF TRANSMITTAL
NORTH FORK CAPITAL TRUST I
OFFER TO EXCHANGE ITS
8.70% EXCHANGE CAPITAL TRUST PASS-THROUGH SECURITIES
("EXCHANGE CAPITAL SECURITIES")
(LIQUIDATION AMOUNT $1,000 PER EXCHANGE CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
8.70% ORIGINAL CAPITAL TRUST PASS-THROUGH SECURITIES
("ORIGINAL CAPITAL SECURITIES")
(LIQUIDATION AMOUNT $1,000 PER ORIGINAL CAPITAL SECURITY)
UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN,
BY
NORTH FORK BANCORPORATION, INC.
PURSUANT TO THE PROSPECTUS DATED MAY 2, 1997
(AS THE SAME MAY BE AMENDED OR SUPPLEMENTED, THE "PROSPECTUS")
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON JUNE 3, 1997,
OR ON SUCH LATER DATE OR TIME TO WHICH THE TRUST
MAY EXTEND THE EXCHANGE OFFER (THE "EXPIRATION DATE").
TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M.,
NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent For The Exchange Offer Is:
BANKERS TRUST COMPANY
<TABLE>
<S> <C> <C>
By Mail: By Overnight Mail or Courier: By Hand:
BT Services Tennessee, Inc. BT Services Tennessee, Inc. Bankers Trust Company
Reorganization Unit Corporate Trust & Agency Group Corporate Trust & Agency Group
P.O. Box 292737 Reorganization Unit Attn: Reorganization Department
Nashville, Tennessee 37229-2737 648 Grassmere Park Road Receipt & Delivery Window
Facsimile Transmission Number: Nashville, Tennessee 37211 123 Washington Street, 1st Floor
(615) 835-3701 Confirm by Telephone: New York, New York 10006
(615) 835-3572 Information:
(800) 735-7777
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS
OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS
LETTER OF TRANSMITTAL VIA FACSIMILE TO A NUMBER
OTHER THAN AS SET FORTH ABOVE
DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
<PAGE> 2
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus. As used herein, the term "Holder" means a holder
of Original Capital Securities, including any participant ("DTC Participant") in
the book-entry transfer facility system of The Depository Trust Company ("DTC")
whose name appears on a security position listing as the owner of the Original
Capital Securities. As used herein, the term "Certificates" means physical
certificates representing Original Capital Securities.
To participate in the Exchange Offer (as defined below), Holders must
tender by (a) book-entry transfer pursuant to the procedures set forth in the
Prospectus under "The Exchange Offer -- Procedures for Tendering Original
Capital Securities," or (b) forwarding Certificates herewith. Holders who are
DTC Participants tendering by book-entry transfer must execute such tender
through the Automated Tender Offer Program ("ATOP") of DTC. A Holder using ATOP
should transmit its acceptance to DTC on or prior to the Expiration Date. DTC
will verify such acceptance, execute a book-entry transfer of the tendered
Original Capital Securities into the Exchange Agent's account at DTC and then
send to the Exchange Agent confirmation of such book-entry transfer (a
"book-entry confirmation"), including an agent's message ("Agent's Message")
confirming that DTC has received an express acknowledgement from such Holder
that such Holder has received and agrees to be bound by this Letter of
Transmittal and that the Trust and the Corporation may enforce this Letter of
Transmittal against such Holder. The book-entry confirmation must be received by
the Exchange Agent in order for the tender relating thereto to be effective.
Book-entry transfer to DTC in accordance with DTC's procedures does not
constitute delivery of the book-entry confirmation to the Exchange Agent.
If the tender is not made through ATOP, Certificates, as well as this
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date in order for
such tender to be effective.
Holders of Original Capital Securities who cannot complete the procedures
for delivery by book-entry transfer of such Original Capital Securities on a
timely basis or who cannot deliver their Certificates for such Original Capital
Securities and all other required documents to the Exchange Agent on or prior to
the Expiration Date, must, in order to participate in the Exchange Offer, tender
their Original Capital Securities according to the guaranteed delivery
procedures set forth in the Prospectus under "The Exchange Offer -- Procedures
for Tendering Original Capital Securities."
2
<PAGE> 3
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR CERTIFICATES, THIS
LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE
RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE
IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
ALL TENDERING HOLDERS COMPLETE THIS BOX:
- --------------------------------------------------------------------------------
DESCRIPTION OF ORIGINAL CAPITAL SECURITIES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
IF BLANK, PLEASE PRINT NAME AND ORIGINAL CAPITAL SECURITIES TENDERED
ADDRESS OF REGISTERED HOLDER. (ATTACH ADDITIONAL LIST IF NECESSARY)
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PRINCIPAL AMOUNT
AGGREGATE PRINCIPAL OF ORIGINAL CAPITAL
CERTIFICATE AMOUNT OF ORIGINAL SECURITIES TENDERED
NUMBER(S)* CAPITAL SECURITIES (IF LESS THAN ALL)**
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
TOTAL AMOUNT TENDERED
------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by book-entry holders.
** Original Capital Securities may be tendered in whole or in part in
denominations of $100,000 and integral multiples of $1,000 in excess
thereof, provided that if any Original Capital Securities are tendered for
exchange in part, the untendered principal amount thereof must be $100,000
or any integral multiple of $1,000 in excess thereof. All Original Capital
Securities held shall be deemed tendered unless a lesser number is
specified in this column. See Instruction 4.
================================================================================
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED ORIGINAL CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH DTC, AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
------------------------------------------------------------------------------
DTC Account Number
------------------------------------------------------------------------------
Transaction Code Number
------------------------------------------------------------------------------
3
<PAGE> 4
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED ORIGINAL CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT, AND
COMPLETE THE FOLLOWING:
Name of Registered Holder(s)
---------------------------------------------------------------------------
Window Ticket Number (if any)
--------------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
-----------------------------------------------------
Name of Institution which Guaranteed Delivery
----------------------------------------------------------
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution
----------------------------------------------------------------------------
DTC Account Number
- --------------------------------------------------------------------------------
Transaction Code Number
- --------------------------------------------------------------------------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE ORIGINAL CAPITAL
SECURITIES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
TRADING ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
4
<PAGE> 5
LADIES AND GENTLEMEN:
The undersigned hereby tenders to North Fork Capital Trust I, a trust
formed under the laws of the State of Delaware (the "Trust") and North Fork
Bancorporation, Inc., a Delaware corporation (the "Corporation"), the above
described aggregate Liquidation Amount of the Trust's Original Capital
Securities in exchange for a like aggregate Liquidation Amount of the Trust's
Exchange Capital Securities which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), upon the terms and subject to the
conditions set forth in the Prospectus, receipt of which is hereby acknowledged,
and in this Letter of Transmittal (which, together with the Prospectus,
constitute the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Original Capital Securities tendered herewith in accordance with
the terms and conditions of the Exchange Offer (including, if the Exchange Offer
is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Trust all right, title and interest in and to such Original Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Corporation and the Trust in connection with the Exchange Offer) with respect to
the tendered Original Capital Securities, with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest) subject only to the right of withdrawal described in the Prospectus,
to (i) deliver Certificates for Original Capital Securities to the Corporation
or the Trust together with all accompanying evidences of transfer and
authenticity to, or upon the order of, the Trust, upon receipt by the Exchange
Agent, as the undersigned's agent, of the Exchange Capital Securities to be
issued in exchange for such Original Capital Securities, (ii) present
Certificates for such Original Capital Securities for transfer, and to transfer
the Original Capital Securities on the books of the Trust, and (iii) receive for
the account of the Trust all benefits and otherwise exercise all rights of
beneficial ownership of such Original Capital Securities, all in accordance with
the terms and conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE
ORIGINAL CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED
FOR EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE ORIGINAL CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE TRUST OR THE EXCHANGE AGENT TO BE
NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE
ORIGINAL CAPITAL SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED WILL COMPLY
WITH ITS OBLIGATIONS UNDER THE REGISTRATION AGREEMENT. THE UNDERSIGNED HAS READ
AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered Holder(s) of the Original
Capital Securities tendered hereby should be printed in the box entitled
"Description of Original Capital Securities" above, if they are not already set
forth in such box, as they appear on the Certificates representing such Original
Capital Securities or on the records of DTC, as the case may be. The Certificate
number(s) of any such Certificates and the principal amount of such Original
Capital Securities should be specified in such box as indicated therein.
The undersigned understands that tenders of Original Capital Securities
pursuant to any one of the procedures described in "The Exchange
Offer -- Procedures for Tendering Original Capital Securities" in the Prospectus
and in the instructions attached hereto will, upon the Corporation's and the
Trust's acceptance for exchange of such tendered Original Capital Securities,
constitute a binding agreement between the undersigned, the Corporation and the
Trust upon the terms and subject to the conditions of the Exchange Offer.
5
<PAGE> 6
The undersigned recognizes that, under certain circumstances set forth in
the Prospectus, the Corporation and the Trust may not be required to accept for
exchange any of the Original Capital Securities tendered hereby.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Capital
Securities be issued in the name(s) of the undersigned or credited to the
account at DTC indicated above in the case of a book-entry transfer of Original
Capital Securities.
If any Original Capital Securities are submitted for more Original Capital
Securities than are tendered or accepted for exchange, then, without expense to
the tendering Holder, promptly following the expiration or termination of the
Exchange Offer, such non-exchanged or non-tendered Original Capital Securities
will, if evidenced by Certificates, be returned, or will, if evidenced by
book-entry, be credited to the account at DTC indicated above. If applicable,
substitute Certificates representing non-exchanged Original Capital Securities
will be issued to the undersigned or non-exchanged Original Capital Securities
will be credited to the account at DTC indicated above in the case of a
book-entry transfer of Original Capital Securities.
Unless otherwise indicated under "Special Delivery Instructions,"
certificates for Original Capital Securities and for Exchange Capital Securities
will be delivered to the undersigned at the address shown below the
undersigned's signature.
BY TENDERING ORIGINAL CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE
UNDERSIGNED IS NOT AN "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF THE CORPORATION OR THE TRUST, (II) ANY EXCHANGE CAPITAL SECURITIES TO BE
RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS
BUSINESS, (III) THE UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY
PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES
ACT) OF EXCHANGE CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER, AND
(IV) IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED
IN, AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH EXCHANGE CAPITAL SECURITIES. BY TENDERING ORIGINAL
CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF
TRANSMITTAL, A HOLDER OF ORIGINAL CAPITAL SECURITIES THAT IS A BROKER-DEALER
REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY
THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE
COMMISSION TO THIRD PARTIES, THAT (A) SUCH ORIGINAL CAPITAL SECURITIES ARE HELD
BY SUCH BROKER-DEALER ONLY AS A NOMINEE, OR (B) SUCH ORIGINAL CAPITAL SECURITIES
WERE ACQUIRED BY IT FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES
OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER THE PROSPECTUS MEETING THE
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH
EXCHANGE CAPITAL SECURITIES (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY
DELIVERING THE PROSPECTUS, IT WILL NOT BE DEEMED TO ADMIT THAT IT IS AN
"UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
6
<PAGE> 7
THE CORPORATION AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVISIONS
OF THE REGISTRATION AGREEMENT, THE PROSPECTUS MAY BE USED IN CONNECTION WITH
RESALES OF EXCHANGE CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR ORIGINAL CAPITAL
SECURITIES BY A BROKER-DEALER WHO ACQUIRED ORIGINAL CAPITAL SECURITIES FOR ITS
OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER") FOR A PERIOD ENDING 180 DAYS AFTER THE EXPIRATION
DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE
PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH EXCHANGE CAPITAL SECURITIES HAVE BEEN
DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER. IN THAT REGARD, EACH
PARTICIPATING BROKER-DEALER, BY TENDERING SUCH ORIGINAL CAPITAL SECURITIES AND
EXECUTING THIS LETTER OF TRANSMITTAL OR BY TENDERING THROUGH BOOK-ENTRY TRANSFER
IN LIEU THEREOF, AGREES THAT, UPON RECEIPT OF NOTICE FROM THE CORPORATION OR THE
TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES
ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN
ANY MATERIAL RESPECT OR WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL
FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY
REFERENCE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE
REGISTRATION AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE
OF EXCHANGE CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL (1) THE
CORPORATION AND THE TRUST HAVE AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT
SUCH MISSTATEMENT OR OMISSION AND HAVE FURNISHED COPIES OF THE AMENDED OR
SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR (2) THE
CORPORATION OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF THE EXCHANGE CAPITAL
SECURITIES MAY BE RESUMED, AS THE CASE MAY BE. IF THE CORPORATION OR THE TRUST
GIVES SUCH NOTICE TO SUSPEND THE SALE OF THE EXCHANGE CAPITAL SECURITIES, THEY
SHALL EXTEND THE 180-DAY PERIOD REFERRED TO ABOVE DURING WHICH PARTICIPATING
BROKER-DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN CONNECTION WITH THE RESALE
OF EXCHANGE CAPITAL SECURITIES BY THE NUMBER OF DAYS DURING THE PERIOD FROM AND
INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO AND INCLUDING THE DATE ON
WHICH (1) PARTICIPATING BROKER-DEALERS SHALL HAVE RECEIVED COPIES OF THE
SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO PERMIT RESALES OF THE EXCHANGE
CAPITAL SECURITIES OR (2) THE CORPORATION OR THE TRUST HAS GIVEN NOTICE THAT THE
SALE OF EXCHANGE CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
AS A RESULT, A PARTICIPATING BROKER-DEALER WHO INTENDS TO USE THE
PROSPECTUS IN CONNECTION WITH RESALES OF EXCHANGE CAPITAL SECURITIES RECEIVED IN
EXCHANGE FOR ORIGINAL CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER MUST
NOTIFY THE CORPORATION AND THE TRUST, OR CAUSE THE CORPORATION AND THE TRUST TO
BE NOTIFIED, ON OR PRIOR TO THE EXPIRATION DATE, THAT IT IS A PARTICIPATING
BROKER-DEALER. SUCH NOTICE MAY BE GIVEN IN THE SPACE PROVIDED ABOVE OR MAY BE
DELIVERED TO THE EXCHANGE AGENT AT THE ADDRESS SET FORTH IN THE PROSPECTUS UNDER
"THE EXCHANGE OFFER -- EXCHANGE AGENT."
Holders whose Original Capital Securities are accepted for exchange will
not receive Distributions on such Original Capital Securities and the
undersigned hereby waives the right to receive any Distributions on such
Original Capital Securities accumulated from and including December 31, 1996.
Accordingly, holders of Exchange Capital Securities (as of the record date) for
the payment of Distributions on June 15, 1997 will be entitled to Distributions
accumulated from and including December 31, 1996.
7
<PAGE> 8
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Corporation or the Trust to be necessary or desirable to
complete the sale, assignment and transfer of the Original Capital Securities
tendered hereby. All authority herein conferred or agreed to be conferred in
this Letter of Transmittal shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, personal representatives, trustees in
bankruptcy, legal representatives, successors and assigns of the undersigned.
Except as stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF ORIGINAL
CAPITAL SECURITIES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE ORIGINAL CAPITAL SECURITIES AS SET FORTH IN SUCH BOX.
8
<PAGE> 9
HOLDER(S) SIGN HERE
(SEE ATTACHED INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON THE LAST PAGE)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered Holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Original Capital Securities hereby tendered or on the
records of DTC, as the case may be, or by any person(s) authorized to become the
registered Holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certifications and other information as may
be required by the Trust to comply with the restrictions on transfer applicable
to the Original Capital Securities). If signature is by an attorney-in-fact,
executor, administrator, trustee, guardian, officer of a corporation or another
acting in a fiduciary capacity or representative capacity, set forth the
signatory's full title. See Instruction 5.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Date , 1997
---------------------------
Name(s)
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Capacity (full title)
-----------------------------------------------------------------
Address
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number ( )
------------------------------------------------
Tax Identification or Social Security Number
-----------------------------------
GUARANTEE OF SIGNATURE(S)
(SEE ATTACHED INSTRUCTIONS 2 AND 5)
Authorized Signature
-----------------------------------------------------------
Date , 1997
---------------------------
Name of Firm
-------------------------------------------------------------------
Capacity (full title)
----------------------------------------------------------
(PLEASE PRINT)
Address
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number ( )
------------------------------------------------
9
<PAGE> 10
------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if Exchange Capital Securities or non-tendered
or non-exchanged Original Capital Securities are to be issued in the name
of someone other than the registered Holder(s) of the Original Capital
Securities whose name(s) appear(s) above.
Issue:
[ ] Non-tendered or non-exchanged Original Capital Securities to:
[ ] Exchange Capital Securities to:
Name(s)
-------------------------------------------------
Address
--------------------------------------------------
------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------
Area Code and
Telephone Number
--------------------------------------
------------------------------------------------------------
(TAX IDENTIFICATION OR
SOCIAL SECURITY NUMBER(S))
============================================================
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if Certificates for Exchange Capital Securities
or non-tendered or non-exchanged Original Capital Securities are to be
sent to someone other than the registered Holder(s) of the Original
Capital Securities whose name(s) appear(s) above, or such registered
Holder(s) at an address other than that shown above.
Mail:
[ ] Non-tendered or non-exchanged Original Capital Securities to:
[ ] Exchange Capital Securities to:
Name(s)
-------------------------------------------------
Address
--------------------------------------------------
------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------
Area Code and
Telephone Number
--------------------------------------
------------------------------------------------------------
(TAX IDENTIFICATION OR
SOCIAL SECURITY NUMBER(S))
------------------------------------------------------------
10
<PAGE> 11
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. BOOK-ENTRY TRANSFER; DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES;
GUARANTEED DELIVERY PROCEDURES. To tender in the Exchange Offer, Holders must
tender by (a) forwarding Certificates herewith or (b) book-entry transfer
pursuant to the procedures set forth in "The Exchange Offer -- Procedures for
Tendering Original Capital Securities" in the Prospectus. Holders who are DTC
Participants tendering by book-entry transfer must execute such tender through
DTC's ATOP system. A Holder using ATOP should transmit its acceptance to DTC on
or prior to the Expiration Date. DTC will verify such acceptance, execute a
book-entry transfer of the tendered Original Capital Securities into the
Exchange Agent's account at DTC and then send to the Exchange Agent a book-entry
confirmation, including an Agent's Message confirming that DTC has received an
express acknowledgement from such Holder that such Holder has received and
agrees to be bound by this Letter of Transmittal and that the Trust and the
Corporation may enforce this Letter of Transmittal against such Holder. The
book-entry confirmation must be received by the Exchange Agent in order for the
tender relating thereto to be effective. Book-entry transfer to DTC in
accordance with DTC's procedure does not constitute delivery of the book-entry
confirmation to the Exchange Agent.
If the tender is not made through ATOP, Certificates, as well as this
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date in order for
such tender to be effective.
Original Capital Securities may be tendered in whole or in part in the
principal amount of $100,000 (100 Original Capital Securities) and integral
multiples of $1,000 in excess thereof, provided that, if any Original Capital
Securities are tendered for exchange in part, the untendered principal amount
thereof must be $100,000 (100 Original Capital Securities) or any integral
multiple of $1,000 in excess thereof.
Holders who wish to tender their Original Capital Securities and (i) whose
Original Capital Securities are not immediately available or (ii) who cannot
deliver their Original Capital Securities, this Letter of Transmittal and all
other required documents to the Exchange Agent on or prior to the Expiration
Date or (iii) who cannot complete the procedures for delivery by book-entry
transfer on a timely basis, may tender their Original Capital Securities by
properly completing and duly executing a Notice of Guaranteed Delivery pursuant
to the guaranteed delivery procedures set forth in the Prospectus under "The
Exchange Offer -- Guaranteed Delivery." Pursuant to such procedures: (i) such
tender must be made by or through an Eligible Institution (as defined below);
(ii) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form accompanying this Letter of Transmittal, must be
received by the Exchange Agent on or prior to the Expiration Date; and (iii) (a)
a book-entry confirmation or (b) the certificates representing all tendered
Original Capital Securities, in proper form for transfer, together with a Letter
of Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees and any other documents required by this
Letter of Transmittal, must be, in any case, received by the Exchange Agent
within three New York Stock Exchange trading days after the date of execution of
such Notice of Guaranteed Delivery, all as provided in the Prospectus under "The
Exchange Offer -- Guaranteed Delivery".
A Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Original Capital
Securities to be properly tendered pursuant to the guaranteed delivery
procedure, the Exchange Agent must receive a Notice of Guaranteed Delivery on or
prior to the Expiration Date. As used herein and in the Prospectus, "Eligible
Institution" means a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as "an eligible guarantor institution," including (as such terms
are defined therein) (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association.
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR CERTIFICATES, THIS
LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT
11
<PAGE> 12
THE OPTION AND SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED
MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT
DELIVERY SERVICE IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED
TO ENSURE TIMELY DELIVERY.
Neither the Corporation nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering Holder, by book-entry transfer
through ATOP or execution of a Letter of Transmittal (or facsimile thereof),
waives any right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered Holder(s) of
Original Capital Securities tendered herewith, unless such Holder(s)
has completed either the box entitled "Special Issuance
Instructions" or the box entitled "Special Delivery Instructions"
above, or
(ii) such Original Capital Securities are tendered for the account of a
firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Original Capital Securities" is inadequate, the Certificate
number(s) and/or the principal amount of Original Capital Securities and any
other required information should be listed on a separate signed schedule which
is attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Original Capital
Securities will be accepted only in the principal amount of $100,000 (100
Original Capital Securities) and integral multiples of $1,000 in excess thereof,
provided that if any Original Capital Securities are tendered for exchange in
part, the untendered principal amount thereof must be $100,000 (100 Original
Capital Securities) or any integral multiple of $1,000 in excess thereof. If
less than all the Original Capital Securities are to be tendered, fill in the
principal amount of Original Capital Securities that are to be tendered in the
box entitled "Principal Amount of Original Capital Securities Tendered." If
applicable, new Certificate(s) for the Original Capital Securities that were not
tendered will be sent to the address designated herein by such Holder promptly
after the Expiration Date. All Original Capital Securities represented by
Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Original Capital Securities
may be withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to such date, a written or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at one of its addresses set forth above or in the Prospectus on
or prior to such date. Any such notice of withdrawal must specify the name of
the person who tendered the Original Capital Securities to be withdrawn, the
aggregate principal amount of Original Capital Securities to be withdrawn, and,
if any Certificates for Original Capital Securities have been tendered, the name
of the registered Holder of the Original Capital Securities as set forth on any
such Certificates, if different from that of the person who tendered such
Original Capital Securities. If Certificates for the Original Capital Securities
have been delivered or otherwise identified to the Exchange Agent, then prior to
the physical release of such Certificates, the tendering Holder must submit the
serial numbers shown on the particular Certificates to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Original Capital Securities tendered for the
account of an Eligible Institution. If Original Capital Securities have been
tendered pursuant to the procedures for book-entry transfer set forth in the
Prospectus under "The Exchange Offer -- Procedures for Tendering Original
Capital Securities," the notice of withdrawal must specify the name and number
of the account at DTC to be credited with the withdrawal of Original Capital
Securities. Withdrawals of tenders of Original Capital Securities may not be
rescinded. Original Capital Securities properly withdrawn
12
<PAGE> 13
will not be deemed validly tendered for purposes of the Exchange Offer, but may
be retendered at any subsequent time on or prior to the Expiration Date by
following any of the procedures described herein.
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Trust, in its sole
discretion, whose determination shall be final and binding on all parties.
Neither the Corporation, the Trust, any affiliates or assigns of the Corporation
or the Trust, the Exchange Agent nor any other person shall be under any duty to
give any notification of any irregularities in any notice of withdrawal or incur
any liability for failure to give any such notification. Any Original Capital
Securities which have been tendered but which are withdrawn will be returned to
the Holder thereof promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered Holder(s) of the Original
Capital Securities tendered hereby, the signature(s) must correspond exactly
with the name(s) as written on the face of the Certificate(s) for such Original
Capital Securities, without alteration, enlargement or any change whatsoever, or
as recorded in DTC's book-entry transfer facility system, as the case may be.
If any Certificates tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Original Capital Securities are registered in different
names on several Certificates, it will be necessary to complete, sign and submit
as many separate Letters of Transmittal as there are different registrations of
Certificates. If any tendered Original Capital Securities are registered in
different names in several book-entry accounts, proper procedures for book-entry
transfer must be followed for each account.
If this Letter of Transmittal or any Certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and must submit proper evidence
satisfactory to the Corporation and the Trust, in their sole discretion, of each
such person's authority so to act.
When this Letter of Transmittal is signed by the registered Holder(s) of
the Original Capital Securities listed and transmitted hereby, or book-entry
transfer is effectuated by such Holder(s), no endorsement(s) of Certificate(s)
or separate bond power(s) are required except if Exchange Capital Securities are
to be issued in the name of a person other than the registered Holder(s). If
such exception applies, signature(s) on such Certificate(s) or bond power(s)
must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered Holder(s) of the Original Capital Securities listed, the
Certificate(s) must be endorsed or accompanied by appropriate bond powers,
signed exactly as the name(s) of the registered Holder(s) appear(s) on the
Certificates, and also must be accompanied by such opinions of counsel,
certifications and other information as the Corporation or the Trust may require
in accordance with the restrictions on transfer applicable to the Original
Capital Securities. In such event, signatures on such Certificates or bond
powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange Capital
Securities are to be issued in the name of a person other than the signer of
this Letter of Transmittal, or if Exchange Capital Securities are to be sent to
someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed. Original Capital Securities not exchanged will be returned,
if evidenced by Certificates, by mail or, if tendered by book-entry transfer, by
crediting the account at DTC indicated above in Instruction 4.
7. IRREGULARITIES. The Corporation and the Trust will determine, in their
sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Original Capital Securities, which determination shall be final and
binding on all parties. The Corporation and the Trust reserve the absolute right
to reject any and all tenders determined by either of them not to be in proper
form or the acceptance of which, or exchange for which, may in the view of
counsel to the Corporation and the Trust be unlawful. The Corporation and the
Trust also reserve the absolute right, subject to applicable law, to waive any
of the conditions of the Exchange Offer set forth in the
13
<PAGE> 14
Prospectus under "The Exchange Offer -- Conditions to the Exchange Offer" or any
conditions or irregularity in any tender of Original Capital Securities of any
particular Holder whether or not similar conditions or irregularities are waived
in the case of other Holders. The Corporation's and the Trust's interpretation
of the terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) will be final and binding. No tender of
Original Capital Securities will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived. The
Corporation, the Trust, any affiliates or assigns of the Corporation, the Trust,
the Exchange Agent, or any other person shall not be under any duty to give
notification of any irregularities in tenders or incur any liability for failure
to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front cover of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and this
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income
tax law, a Holder whose tendered Original Capital Securities are accepted for
exchange is required to provide the Exchange Agent with such Holder's correct
taxpayer identification number ("TIN") on Substitute Form W-9 below. If the
Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the Holder or other payee to a $50 penalty. In
addition, payments to such Holders or other payees with respect to Original
Capital Securities exchanged pursuant to the Exchange Offer may be subject to
31% backup withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering Holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
Holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-9.
If the Holder furnishes the Exchange Agent with its TIN within 60 days after the
date of the Substitute Form W-9, the amounts retained during the 60-day period
will be remitted to the Holder and no further amounts shall be retained or
withheld from payments made to the Holder thereafter. If, however, the Holder
has not provided the Exchange Agent with its TIN within such 60-day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Original Capital Securities or of the last transferee appearing on the
transfers attached to, or endorsed on, the Original Capital Securities. If the
Original Capital Securities are registered in more than one name or are not in
the name of the actual owner, consult the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for additional
guidance on which number to report.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed IRS Form W-8,
signed under penalties of perjury, attesting to that holder's exempt status.
Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
Holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax. Rather,
the U.S. Federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
14
<PAGE> 15
10. WAIVER OF CONDITIONS. The Corporation and the Trust reserve the
absolute right to waive satisfaction of any or all conditions enumerated in the
Prospectus.
11. NO CONDITIONAL TENDERS. No alternative, conditional or contingent
tenders will be accepted. All tendering Holders, by execution of this Letter of
Transmittal, shall waive any right to receive notice of the acceptance of
Original Capital Securities for exchange.
Neither the Corporation, the Trust, the Exchange Agent nor any other person
is obligated to give notice of any defect or irregularity with respect to any
tender of Original Capital Securities nor shall any of them incur any liability
for failure to give any such notice.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Original Capital Securities have been lost, destroyed or stolen,
the Holder should promptly notify the Exchange Agent. The Holder will then be
instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
13. SECURITY TRANSFER TAXES. Holders who tender their Original Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, Exchange Capital Securities are to be
delivered to, or are to be issued in the name of, any person other than the
registered Holder of the Original Capital Securities tendered, or if a transfer
tax is imposed for any reason other than the exchange of Original Capital
Securities in connection with the Exchange Offer, then the amount of any such
transfer tax (whether imposed on the registered holder or any other persons)
will be payable by the tendering Holder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted with this Letter of
Transmittal, the amount of such transfer taxes will be billed directly to such
tendering Holder.
IMPORTANT: BOOK-ENTRY CONFIRMATION OR THIS LETTER OF TRANSMITTAL (OR
FACSIMILE THEREOF) AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED
BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
15
<PAGE> 16
TO BE COMPLETED BY ALL TENDERING SECURITYHOLDERS
(SEE INSTRUCTION 9)
PAYOR'S NAME: BANKERS TRUST COMPANY
<TABLE>
<C> <S> <C>
===================================================================================================================
- -------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE TIN:
FORM W-9 BOX AT RIGHT AND CERTIFY BY SIGNING AND -----------------------------------
DATING BELOW: Social Security Number
or Employer Identification Number
------------------------------------------------------------------------------------
DEPARTMENT OF THE TREASURY PART 2 -- TIN Applied For [ ]
INTERNAL REVENUE SERVICE
------------------------------------------------------------------------------------
CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) The number shown on this form is my correct taxpayer identification number (or
I am waiting for a number to be issued to me).
(2) I am not subject to backup withholding either because (i) I am exempt from
backup withholding, (ii) I have not been notified by the Internal Revenue Service
("IRS") that I am subject to backup withholding as a result of a failure to
report all interest or dividends, or (iii) the IRS has notified me that I am no
longer subject to backup withholding, and
(3) any other information provided on this form is true and correct.
Signature Date: ________________
PAYER'S REQUEST FOR
TAXPAYER IDENTIFICATION
NUMBER ("TIN")
AND CERTIFICATION
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
You must cross out item (iii) in Part (2) above if you have been notified by the
IRS that you are subject to backup withholding because of underreporting
interest or dividends on your tax return and you have not been notified by the
IRS that you are no longer subject to backup withholding.
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT TO
THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 2 OF THE SUBSTITUTE FORM W-9.
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all payments made to me on account of the Exchange
Capital Securities shall be retained until I provide a taxpayer identification
number to the Exchange Agent and that, if I do not provide my taxpayer
identification number within 60 days, such retained amounts shall be remitted
to the Internal Revenue Service as backup withholding and 31% of all
reportable payments made to me thereafter will be withheld and remitted to the
Internal Revenue Service until I provide a taxpayer identification number.
==============================================================
Signature(s) Date
- --------------------------------------------------------------------------------
16
<PAGE> 1
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
8.70% ORIGINAL CAPITAL TRUST PASS-THROUGH SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
NORTH FORK CAPITAL TRUST I
UNCONDITIONALLY GUARANTEED BY
NORTH FORK BANCORPORATION, INC.
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Trust's (as defined below) 8.70% Original Capital Trust
Pass-Through Securities (the "Original Capital Securities") are not immediately
available, (ii) Original Capital Securities, the Letter of Transmittal and all
other required documents cannot be delivered to Bankers Trust Company (the
"Exchange Agent") on or prior to the Expiration Date (as defined in the
Prospectus referred to below) or (iii) the procedures for delivery by book-entry
transfer cannot be completed on a timely basis. This Notice of Guaranteed
Delivery may be delivered by hand, overnight courier or mail, or transmitted by
facsimile transmission, to the Exchange Agent. See "The Exchange Offer --
Procedures for Tendering Original Capital Securities" in the Prospectus. In
addition, in order to utilize the guaranteed delivery procedure to tender
Original Capital Securities pursuant to the Exchange Offer, a completed, signed
and dated Letter of Transmittal relating to the Original Capital Securities (or
facsimile thereof) must also be received by the Exchange Agent on or prior to
the Expiration Date. Capitalized terms not defined herein have the meanings
assigned to them in the Letter of Transmittal.
The Exchange Agent For The Exchange Offer Is:
BANKERS TRUST COMPANY
<TABLE>
<S> <C> <C>
By Mail: By Overnight Mail or Courier: By Hand:
BT Services Tennessee, Inc. BT Services Tennessee, Inc. Bankers Trust Company
Reorganization Unit Corporate Trust & Agency Group Corporate Trust & Agency Group
P.O. Box 292737 Reorganization Unit Attn: Reorganization Department
Nashville, Tennessee 37229-2737 648 Grassmere Park Road Receipt & Delivery Window
Nashville, Tennessee 37211 123 Washington Street, 1st Floor
New York, New York 10006
Facsimile Transmission Number: Confirm by Telephone: Information:
(615) 835-3701 (615) 835-3572 (800) 735-7777
</TABLE>
Delivery of this Notice of Guaranteed Delivery to an address other than as
set forth above or transmission of this Notice of Guaranteed Delivery via
facsimile to a number other than as set forth above will not constitute a valid
delivery.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE> 2
LADIES AND GENTLEMEN:
The undersigned hereby tenders to North Fork Capital Trust I, a Delaware
business trust (the "Trust") and to North Fork Bancorporation, Inc., a Delaware
Corporation (the "Corporation"), upon the terms and subject to the conditions
set forth in the Prospectus dated May 2, 1997 (as the same may be amended or
supplemented from time to time, the "Prospectus"), and the related Letter of
Transmittal (which together constitute the "Exchange Offer"), receipt of which
is hereby acknowledged, the aggregate principal amount of Original Capital
Securities set forth below pursuant to the guaranteed delivery procedures set
forth in the Prospectus under the caption "The Exchange Offer -- Procedures for
Tendering Original Capital Securities."
Name(s) of Registered Holder(s):
- ---------------------------------------------------------------------------
Aggregate Principal Amount of Original Capital Securities:
$ ----------------------------------------------
Amount Tendered: $ *
------------
If Original Capital Securities will be tendered by forwarding a Certificate
or Certificates, provide the following information:
Certificate No(s)
(if available):
-------------------------
--------------------------
Total Liquidation Amount
Represented by Original Capital
Securities Certificate(s):
$
- ---------------------------------------
If Original Capital Securities will be tendered by book-entry transfer, provide
the following information:
DTC Account Number:
--------------
Date:
-----------------------------------
- ----------------------------------------
* Must be in denominations of a Liquidation Amount of $1,000 and any integral
multiple thereof, and not less than $100,000 aggregate Liquidation Amount.
- --------------------------------------------------------------------------------
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
<TABLE>
<S> <C>
X
- -------------------------------------------- ------------------------------
X
- -------------------------------------------- ------------------------------
Signature(s) of Owner(s) Date
or Authorized Signatory
</TABLE>
Area Code and Telephone Number:
-------------------------------------------------
2
<PAGE> 3
This Notice of Guaranteed Delivery must be signed by the holder(s) of the
Original Capital Securities as their name(s) appear(s) on certificates for
Original Capital Securities or on a security position listing in the records of
DTC, or by person(s) authorized to become registered Holder(s) by endorsement
and documents transmitted with this Notice of Guaranteed Delivery. If signature
is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or
other person acting in a fiduciary or representative capacity, such person must
set forth his or her full title below.
Please print name(s) and address(es):
<TABLE>
<S> <C>
Name(s): -------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Capacity: -------------------------------------------------------------------------------
Address(es): -------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
</TABLE>
3
<PAGE> 4
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker or government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the Original
Capital Securities tendered hereby in proper form for transfer, or confirmation
of the book-entry transfer of such Original Capital Securities to the Exchange
Agent's account at The Depository Trust Company ("DTC"), pursuant to the
procedures for book-entry transfer set forth in the Prospectus, in either case
together with one or more properly completed and duly executed Letter(s) of
Transmittal (or facsimile thereof) and any other required documents within three
business days after the date of execution of this Notice of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal and the Original Capital Securities tendered hereby to the Exchange
Agent within the time period set forth above and that failure to do so could
result in a financial loss to the undersigned.
<TABLE>
<S> <C>
- -------------------------------------------- --------------------------------------------
Name of Firm Authorized Signature
- -------------------------------------------- --------------------------------------------
Address Title
- -------------------------------------------- --------------------------------------------
Zip Code (Please Type or Print)
Area Code and Telephone No. Dated:
------------------ ------------------- -----------------
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR ORIGINAL CAPITAL SECURITIES WITH THIS FORM.
CERTIFICATES FOR ORIGINAL CAPITAL SECURITIES SHOULD ONLY BE SENT WITH YOUR
LETTER OF TRANSMITTAL.
4
<PAGE> 1
April 29, 1997
Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street
New York, New York 10006
Ladies and Gentlemen:
North Fork Capital Trust I, a trust formed under the laws of the State of
Delaware (the "Trust") proposes to make an offer (the "Exchange Offer") to
exchange any and all of its outstanding 8.70% Capital Trust Pass-through
Securities (Liquidation Amount $1,000 per Capital Security) (the "Original
Capital Securities") for its 8.70% Exchange Capital Trust Pass-through
Securities (Liquidation Amount $1,000 per Capital Security) (the "Exchange
Capital Securities"). All of the beneficial interests represented by common
securities of the Trust are owned by North Fork Bancorporation, Inc., a Delaware
corporation (the "Corporation"). The terms and conditions of the Exchange Offer
as currently contemplated are set forth in a prospectus, dated May 2, 1997 (the
"Prospectus"), to be distributed to all record holders of the Original Capital
Securities. A copy of the Prospectus is attached hereto as Exhibit A. The
Original Capital Securities and the Exchange Capital Securities are collectively
referred to herein as the "Securities." Capitalized terms used but not defined
herein shall have the same meaning given them in the Prospectus.
A copy of each of the form of the Letter of Transmittal, the form of the
Notice of Guaranteed Delivery, the form of letter to brokers and the form of
letter to clients are attached hereto as Exhibit B.
The Trust hereby appoints Bankers Trust Company to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to Bankers Trust Company.
The Exchange Offer is expected to be commenced by the Trust on or about May
2, 1997. The Letter of Transmittal accompanying the Prospectus (or in the case
of book entry securities, the ATOP system) is to be used by the holders of the
Original Capital Securities to accept the Exchange Offer and contains
instructions with respect to (i) the delivery of certificates for Original
Capital Securities tendered in connection therewith and (ii) the book entry
transfer of Securities to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on June
3, 1997 or on such later date or time to which the Trust may extend the Exchange
Offer (the "Expiration Date"). Subject to the terms and conditions set forth in
the Prospectus, the Trust expressly reserves the right to extend the Exchange
Offer from time to time by giving oral (to be confirmed in writing) or written
notice to you before 9:00 A.M., New York City time, on the Business Day
following the previously scheduled Expiration Date.
The Trust expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Original Capital Securities not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer -- Conditions to the Exchange Offer." The Trust will give you
prompt oral (confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Original Capital Securities.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer" or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Original Capital
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two Business Days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's system may make book-entry delivery of the
Original Capital Securities by causing the Book-Entry
<PAGE> 2
Transfer Facility to transfer such Original Capital Securities into your account
in accordance with the Book-Entry Transfer Facility's procedure for such
transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Original Capital Securities (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Original Capital Securities
to ascertain whether: (i) the Letters of Transmittal and any such other
documents are duly executed and properly completed in accordance with
instructions set forth therein and (ii) the Original Capital Securities have
otherwise been properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the
certificates for Original Capital Securities are not in proper form for transfer
or some other irregularity in connection with the acceptance of the Exchange
Offer exists, you will endeavor to inform such holders of the need for
fulfillment of all requirements and to take any other action as may be necessary
or advisable to cause such irregularity to be corrected.
4. With the approval of any Administrative Trustee of the Trust or any
person designated in writing by the Corporation (a "Designated Officer") (such
approval, if given orally, to be confirmed in writing) or any other party
designated by any such Administrative Trustee or Designated Officer in writing,
you are authorized to waive any irregularities in connection with any tender of
Original Capital Securities pursuant to the Exchange Offer.
5. Tenders of Original Capital Securities may be made only as set forth in
the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering Original Capital Securities," and
Original Capital Securities shall be considered properly tendered to you only
when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Original Capital
Securities which any Administrative Trustee of the Trust or Designated Officer
of the Corporation shall approve as having been properly tendered shall be
considered to be properly tendered. Such approval, if given orally, shall be
confirmed in writing.
6. You shall advise the Trust and the Corporation with respect to any
Original Capital Securities received subsequent to the Expiration Date and
accept their instructions with respect to disposition of such Original Capital
Securities.
7. You shall accept tenders:
(a) in cases where the Original Capital Securities are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of such person's authority so to act is submitted; and
(c) from persons other than the registered holder of Original Capital
Securities provided that customary transfer requirements, including satisfaction
of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Original Capital Securities where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Original Capital Securities to the transfer agent for division and return
any untendered Original Capital Securities to the holder (or such other person
as may be designated in the Letter of Transmittal) as promptly as practicable
after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Trust will notify you (such notice, if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all
Original Capital Securities properly tendered and you, on behalf of the Trust,
will exchange such Original Capital Securities for Exchange Capital Securities
and cause such Original Capital Securities to be canceled. Delivery of Exchange
Capital Securities will be made on behalf of the Trust by you at the rate of
$1,000 principal amount of Exchange Capital Securities for each $1,000 principal
amount of the corresponding series of Original Capital Securities tendered
promptly after notice (such notice, if given orally, to be confirmed in writing)
of acceptance of said Original Capital Securities by the Trust; provided,
however, that in
2
<PAGE> 3
all cases, Original Capital Securities tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of certificates for such
Original Capital Securities (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility), a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents. You shall issue Exchange
Capital Securities only in denominations of $1,000 or any integral multiple
thereof. Original Capital Securities may be tendered in whole or in part in
denominations of $100,000 and integral multiples of $1,000 in excess thereof,
provided that if any Original Capital Securities are tendered for exchange in
part, the untendered principal amount thereof must be $100,000 or any integral
multiple of $1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Original Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Trust shall not be required to exchange any Original Capital
Securities tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Trust not to exchange any Original
Capital Securities tendered shall be given orally (and confirmed in writing) by
the Trust to you.
11. If, pursuant to the Exchange Offer, the Trust does not accept for
exchange all or part of the Original Capital Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange
Offer" or otherwise, you shall promptly after the expiration or termination of
the Exchange Offer return those certificates for unaccepted Original Capital
Securities (or effect appropriate book-entry transfer), together with any
related required documents and the Letters of Transmittal relating thereto that
are in your possession, to the persons who deposited them.
12. All certificates for reissued Original Capital Securities, unaccepted
Original Capital Securities or for Exchange Capital Securities shall be
forwarded (a) by first-class certified mail, return receipt requested, under a
blanket surety bond protecting you and the Trust from loss or liability arising
out of the non-receipt or non-delivery of such certificates; (b) by registered
mail insured separately for the replacement value of each of such certificates
or (c) by effectuating appropriate book-entry transfer.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically set
forth in the section of the Prospectus captioned "The Exchange Offer," the
Letter of Transmittal or herein or as may be subsequently agreed to in writing
by you and the Trust;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Original Capital Securities represented thereby
deposited with you pursuant to the Exchange Offer, and will not be required to
and will make no representation as to the validity, value or genuineness of the
Exchange Offer or the Letter of Transmittal or any other disclosure materials
delivered in connection therewith;
(c) shall not be obligated to take any legal action hereunder which might
in your reasonable judgment involve any expense or liability, unless you shall
have been furnished with indemnity reasonably satisfactory to you;
(d) may reasonably rely on and shall be protected in acting in reliance
upon any certificate, instrument, opinion, notice, letter, telegram or other
document or security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(e) may reasonably act upon any tender, statement, request, agreement or
other instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and
3
<PAGE> 4
accuracy of any information contained therein, which you shall in good faith
believe to be genuine or to have been signed or represented by a proper person
or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from any Administrative Trustee of the Trust or from any Designated
Officer of the Corporation;
(g) may consult with counsel satisfactory to you, including counsel for the
Trust, with respect to any questions relating to your duties and
responsibilities and the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by you hereunder in good faith and in accordance with the
advice or opinion of such counsel, provided that you shall promptly notify the
Corporation of any action taken or omitted by you in reliance upon such advice
or opinion; and
(h) shall not advise any person tendering Original Capital Securities
pursuant to the Exchange Offer as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any Original
Capital Securities.
15. You shall take such action as may from time to time be requested by the
Trust or its counsel or any Designated Officer of the Corporation (and such
other action as you may reasonably deem appropriate) to furnish copies of the
Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery or such
other forms as may be approved from time to time by the Trust or the
Corporation, to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the Exchange Offer, provided
that such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Trust will furnish you with copies of
such documents at your request. All other requests for information relating to
the Exchange Offer shall be directed to the Trust, Attention: John N. DiGiacomo.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to John N. DiGiacomo of the Trust, and such other
person or persons as the Trust or the Corporation may request, daily (and more
frequently during the week immediately preceding the Expiration Date and if
otherwise requested) up to and including the Expiration Date, as to the number
of Original Capital Securities which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement, separately
reporting and giving cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and cooperate in making
available to, the Trust or the Corporation or any such other person or persons,
upon oral request made from time to time on or prior to the Expiration Date,
such other information as it or such person reasonably requests. Such
cooperation shall include, without limitation, the granting by you to the Trust
or the Corporation, and such person as the Trust or the Corporation may request,
of access to those persons on your staff who are responsible for receiving
tenders, in order to ensure that immediately prior to the Expiration Date the
Trust or the Corporation shall have received information in sufficient detail to
enable it to decide whether to extend the Exchange Offer. You shall prepare a
final list of all persons whose tenders were accepted, the aggregate principal
amount of Original Capital Securities tendered, the aggregate principal amount
of Original Capital Securities accepted and deliver said list to the Trust
promptly after the Expiration Date.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities.
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reasons of amounts, if any, borrowed by the Trust,
or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to the compensation set forth on Schedule I attached hereto, plus
reasonable out-of-pocket expenses and reasonable attorneys' fees, incurred in
connection with your services hereunder, within thirty days following receipt by
the Corporation of an itemized statement of such expenses and fees in reasonable
detail.
4
<PAGE> 5
20. (a) The Trust covenants and agrees to indemnify and hold you (which for
purposes of this paragraph shall include your directors, officers and employees)
harmless in your capacity as Exchange Agent hereunder from and against any and
all loss, liability, cost, damage, expense and claim, including but not limited
to reasonable attorneys' fees and expenses, incurred by you as a result of,
arising out of or in connection with the performance by you of your duties under
this Agreement or the compliance by you with the instructions set forth herein
or delivered hereunder; provided, however, that the Trust shall not be liable
for indemnification or otherwise for any loss, liability, cost, damage, expense
or claim arising out of your gross negligence or willful misconduct. In no case
shall the Trust be liable under this indemnity with respect to any claim against
you unless the Trust shall be notified by you, by letter or by facsimile
confirmed by letter, of the written assertion of a claim against you or of any
other action commenced against you, promptly after you shall have received any
such written assertion or notice of commencement of action. The Trust shall be
entitled to participate at its own expense in the defense of any such claim or
other action, and, if the Trust so elects, the Trust may assume the defense of
any suit brought to enforce any such claim; provided that the Trust shall not be
entitled to assume the defense of any such action if the named parties to such
action include both the Trust and you and representation of both parties by the
same legal counsel would, in the written opinion of counsel to you, be
inappropriate due to actual or potential conflicting interests between them. In
the event that the Trust shall assume the defense of any such suit or threatened
action in respect of which indemnification may be sought hereunder, the Trust
shall not be liable for the fees and expenses of any counsel thereafter retained
by you. The Trust shall not be liable under this paragraph for the fees and
expenses of more than one legal counsel for you.
(b) You agree that, without the prior written consent of the Trust (which
consent shall not be unreasonably withheld), you will not settle, compromise or
consent to the entry of any pending or threatened claim, action, or proceeding
in respect of which indemnification could be sought in accordance with the
indemnification provisions of this Agreement (whether or not you or the Trust or
any of its trustees or controlling persons is an actual or potential party to
such claim, action or proceeding), unless such settlement, compromise or consent
includes an unconditional release of the Trust and its trustees and controlling
persons from all liability arising out of such claim, action or proceeding.
21. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service. The Trust understands that you are required in certain instances to
deduct 31% of the amounts to be paid with respect to interest paid on the
Exchange Capital Securities and proceeds from the sale, exchange, redemption or
retirement of the Exchange Capital Securities from holders who have not supplied
their correct Taxpayer Identification Number or required certification. Such
funds will be turned over to the Internal Revenue Service in accordance with
applicable regulations.
22. You shall notify the Trust of the amount of any transfer taxes payable
in respect of the exchange of Original Capital Securities and, upon receipt of
written approval from the Trust, you shall deliver or cause to be delivered, in
a timely manner to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Original Capital Securities, your check in
the amount of all transfer taxes so payable, and the Trust shall reimburse you
for the amount of any and all transfer taxes payable in respect of the exchange
of Original Capital Securities; provided, however, that you shall reimburse the
Trust for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto, and no other person shall
have any rights hereunder.
24. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
5
<PAGE> 6
EXCHANGE AGENT AGREEMENT
25. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or facsimile number set forth below:
If to the Trust:
North Fork Capital Trust I
c/o North Fork Bancorporation, Inc.
275 Broad Hollow Road
Melville, New York 11747
Facsimile: (516) 844-1461
Attention: John N. DiGiacomo
If to the Exchange Agent:
Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street-Fourth Floor
New York, New York 10006
Facsimile: 212 250-6392/6961
Attention: Market Services
28. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 180 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 19, 20 and 22 shall survive the termination of this Agreement. Upon
any termination of this Agreement, you shall promptly deliver to the Trust any
certificates for Securities, funds or property then held by you as Exchange
Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
NORTH FORK CAPITAL TRUST I
By: /s/ JOHN N. DIGIACOMO
-----------------------------------
Name: John N. DiGiacomo
Title: Administrative Trustee
Accepted as the date
first above written:
BANKERS TRUST COMPANY, as Exchange
Agent
By: /s/ SANDRA J. SHAFFER
-----------------------------------
Name: Sandra J. Shaffer
Title: Assistant Vice President
6
<PAGE> 7
SCHEDULE I
FEES
BANKERS TRUST COMPANY
CORPORATE TRUST AND AGENCY GROUP
SCHEDULE OF FEES
FOR
NORTH FORK CAPITAL TRUST I
8.70% EXCHANGE CAPITAL TRUST PASS-THROUGH SECURITIES
I. EXCHANGE AGENT $5,000
Covers review of the Letter of Transmittal, the Exchange Agent Agreement
and other related documentation; establishment of accounts and systems link with
depositories; operational and administrative charges and time spent in
connection with the review, receipt and processing of Letters of Transmittal,
Agent's Messages and Notices of Guaranteed Delivery.
Note: The fees set forth in this schedule are subject to review of
documentation and our internal credit and conflict review. The fees are also
subject to change should circumstances warrant. Out-of-pocket expenses and
disbursements, including counsel fees, incurred in the performance of our duties
will be added to the billed fees. We may place orders to buy/sell financial
instruments with outside broker-dealers that we select, as well as BT or its
affiliates. These transactions (for which normal and customary spreads will be
earned in addition to the charges quoted above) will be executed on a riskless
principal basis solely for your account(s) and without recourse to us or our
affiliates. If you choose to invest in any mutual fund, BT and/or our affiliates
may earn service fees/expenses associated with these funds as disclosed in the
mutual fund prospectus provided to you, in addition to the charges quoted above.
We will provide periodic account statements describing transactions executed for
your account(s). Trade confirms will be available upon your request at no
additional charge. If a deal should fail to close for reasons beyond our
control, we reserve the right to charge our acceptance plus reimbursement for
legal fees incurred.
Fees for any services not specifically covered in this or other applicable
schedules will be based on an appraisal of services rendered.
7
<PAGE> 1
NORTH FORK CAPITAL TRUST I
OFFER FOR ALL OUTSTANDING
8.70% ORIGINAL CAPITAL TRUST PASS-THROUGH SECURITIES
IN EXCHANGE FOR
8.70% EXCHANGE CAPITAL TRUST PASS-THROUGH SECURITIES
To: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
North Fork Capital Trust I (the "Trust") is offering, upon and subject to
the terms and conditions set forth in a prospectus dated May 2, 1997 (the
"Prospectus"), and the enclosed letter of transmittal (the "Letter of
Transmittal"), to exchange (the "Exchange Offer") its 8.70% Exchange Capital
Trust Pass-through Securities for any and all of its outstanding 8.70% Original
Capital Trust Pass-through Securities (the "Original Capital Securities"). The
Exchange Offer is being made in order to satisfy certain obligations of the
Trust and North Fork Bancorporation, Inc. (the "Corporation") contained in the
registration agreement dated December 31, 1996, among the Trust, the Corporation
and the initial purchaser referred to therein.
We are requesting that you contact your clients for whom you hold Original
Capital Securities regarding the Exchange Offer. For your information and for
forwarding to your clients for whom you hold Original Capital Securities
registered in your name or in the name of your nominee, or who hold Original
Capital Securities registered in their own names, we are enclosing the following
documents:
1. The Prospectus dated May 2, 1997;
2. The Letter of Transmittal for your use and for the information (or
the use, where relevant) of your clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange
Offer if certificates for Original Capital Securities are not immediately
available or time will not permit all required documents to reach the
Exchange Agent prior to the Expiration Date (as defined below) or if the
procedure for book-entry transfer cannot be completed on a timely basis;
4. A form of letter which may be sent to your clients for whose
account you hold Original Capital Securities registered in your name or the
name of your nominee, with space provided for obtaining such clients'
instructions with regard to the Exchange Offer; and
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
YOUR PROMPT ACTION IS REQUESTED. THE EXCHANGE OFFER WILL EXPIRE AT 5:00
P.M., NEW YORK CITY TIME, ON JUNE 3, 1997, OR ON SUCH LATER DATE OR TIME TO
WHICH THE CORPORATION OR THE TRUST MAY EXTEND THE EXCHANGE OFFER (THE
"EXPIRATION DATE"). THE ORIGINAL CAPITAL SECURITIES TENDERED PURSUANT TO THE
EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE THE EXPIRATION DATE.
To participate in the Exchange Offer, your clients must tender by having
you execute for them a book-entry transfer of tendered Original Capital
Securities into the account of Bankers Trust Company, as Exchange Agent, at The
Depository Trust Company ("DTC") using DTC's Automated Tender Offer Program.
(Your clients may also tender by having certificates representing the Original
Capital Securities, a duly executed and properly completed Letter of Transmittal
(or facsimile thereof), with any required signature guarantees, and any other
required documents delivered to such Exchange Agent.) The Letter of Transmittal
and the Prospectus should be consulted for complete instructions and information
about participation in the Exchange Offer.
If holders of Original Capital Securities wish to tender, but it is
impracticable for them to forward their certificates for Original Capital
Securities prior to the expiration of the Exchange Offer or to comply with the
book-entry transfer procedures on a timely basis, a tender may be effected by
following the guaranteed delivery procedures described in the Prospectus under
"The Exchange Offer -- Procedures for Tendering Original Capital
Securities -- Guaranteed Delivery."
<PAGE> 2
The Trust will, upon request, reimburse brokers, dealers, commercial banks
and trust companies for reasonable and necessary costs and expenses incurred by
them in forwarding the Prospectus and the related documents to the beneficial
owners of Original Capital Securities held by them as nominee or in a fiduciary
capacity. The Trust will pay or cause to be paid all stock transfer taxes
applicable to the exchange of Original Capital Securities pursuant to the
Exchange Offer, except as set forth in Instruction 6 of the Letter of
Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests
for additional copies of the enclosed materials, should be directed to Bankers
Trust Company, the Exchange Agent for the Original Capital Securities, at its
address and telephone number set forth on the front of the Letter of
Transmittal.
Very truly yours,
NORTH FORK CAPITAL TRUST I
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY
PERSON AS AN AGENT OF THE TRUST OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF
THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN
THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
2
<PAGE> 1
NORTH FORK CAPITAL TRUST I
OFFER FOR ALL OUTSTANDING
8.70% ORIGINAL CAPITAL TRUST PASS-THROUGH SECURITIES
IN EXCHANGE FOR
8.70% EXCHANGE CAPITAL TRUST PASS-THROUGH SECURITIES
To Our Clients:
Enclosed for you consideration is a prospectus dated May 2, 1997 (the
"Prospectus"), and the related letter of transmittal (the "Letter of
Transmittal"), relating to the offer (the "Exchange Offer") of North Fork
Capital Trust I (the "Trust") and North Fork Bancorporation, Inc. (the
"Corporation") to exchange the Trust's 8.70% Exchange Capital Trust Pass-through
Securities (the "Exchange Capital Securities") for any and all of the Trust's
outstanding 8.70% Original Capital Trust Pass-through Securities (the "Original
Capital Securities"), upon the terms and subject to the conditions described in
the Prospectus. The Exchange Offer is being made in order to satisfy certain
obligations of the Trust and the Corporation contained in the registration
agreement dated December 31, 1996, among the Trust, the Corporation and the
initial purchasers referred to therein.
This material is being forwarded to you as the beneficial owner of the
Original Capital Securities carried by us in your account but not registered in
your name. A TENDER OF SUCH ORIGINAL CAPITAL SECURITIES MAY ONLY BE MADE BY US
AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS.
Accordingly, we request instructions as to whether you wish us to tender on
your behalf the Original Capital Securities held by us for your account,
pursuant to the terms and conditions set forth in the enclosed Prospectus and
Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Original Capital Securities on your behalf in
accordance with the provisions of the Exchange Offer. The Exchange Offer shall
expire at 5:00 p.m., New York City time, on June 3, 1997, or on such later date
or time to which the Corporation or the Trust may extend the Exchange Offer. Any
Original Capital Securities tendered pursuant to the Exchange Offer may be
withdrawn at any time before the Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Original Capital Securities.
2. The Exchange Offer is subject to certain conditions set forth in
the Prospectus in the section captioned "The Exchange Offer -- Conditions
to the Exchange Offer."
3. Any transfer taxes incident to the transfer of Original Capital
Securities from the holder to the Corporation will be paid by the
Corporation, except as otherwise provided in the Instructions in the Letter
of Transmittal.
4. The Exchange Offer expires at 5:00 p.m., New York City time, on
June 3, 1997, or on such later date or time to which the Corporation or the
Trust may extend the Exchange Offer.
If you wish to have us tender your Original Capital Securities, please so
instruct us by completing, executing and returning to us the instruction form on
the back of this letter. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR
INFORMATION ONLY AND MAY NOT BE USED DIRECTLY BY YOU TO TENDER ORIGINAL CAPITAL
SECURITIES.
<PAGE> 2
INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Exchange Offer made by North Fork
Capital Trust I with respect to its Original Capital Securities.
This will instruct you to tender the Original Capital Securities held by
you for the account of the undersigned, upon and subject to the terms and
conditions set forth in the Prospectus and the related Letter of Transmittal.
Please tender the Original Capital Securities held by you for my account as
indicated below:
<TABLE>
<S> <C>
Aggregate Principal Amount at Maturity of
----------------------------------------------
Original Capital Securities Tendered
--------------------------------------
8.70% Original Capital Trust Pass-through
Securities -----------------------------------------------
[ ] Please do not tender any Original
Capital Securities held by you for my
account.
Dated: --------------------------, 1997 -----------------------------------------------
-----------------------------------------------
Signature(s)
-----------------------------------------------
Please print name(s) here
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
Addresses
-----------------------------------------------
Area Code and Telephone Number
-----------------------------------------------
Tax Identification or Social Security No(s).
</TABLE>
None of the Original Capital Securities held by us for your account will be
tendered unless we receive written instructions from you to do so. Unless a
specific contrary instruction is given in the space provided, your signature(s)
hereon shall constitute an instruction to us to tender all the Original Capital
Securities held by us for your account.
2
