<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 21, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
<TABLE>
<S> <C>
NORTH FORK CAPITAL TRUST II
NORTH FORK BANCORPORATION, INC. NORTH FORK CAPITAL TRUST III
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) (EXACT NAME OF REGISTRANTS AS SPECIFIED IN THEIR TRUST
AGREEMENTS)
DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION) ORGANIZATION)
</TABLE>
------------------------
<TABLE>
<S> <C>
6712 6719
(PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER) (PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER)
11-1353410 APPLIED FOR
(I.R.S. EMPLOYER IDENTIFICATION NO.) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
------------------------
275 BROAD HOLLOW ROAD
MELVILLE, NEW YORK 11747
(516) 844-1004
(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: From Time
to Time after the Effective Date of this Registration Statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED BE REGISTERED OFFERING PRICE AGGREGATE OFFERING PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Capital Securities of North Fork Capital Trust
II........................................... (1) (2) (1) N/A
- ----------------------------------------------------------------------------------------------------------------------------------
Capital Securities of North Fork Capital Trust
III.......................................... (1) (2) (1) N/A
- ----------------------------------------------------------------------------------------------------------------------------------
Guarantees by North Fork Bancorporation, Inc.
of the above-referenced Capital Securities... (3) (3) (3) N/A
- ----------------------------------------------------------------------------------------------------------------------------------
Junior Subordinated Debt Securities of North
Fork
Bancorporation, Inc. ........................ (1) (2) (1) N/A
- ----------------------------------------------------------------------------------------------------------------------------------
Total.................................. $100,000,000 N/A $100,000,000 $30,303.03(4)
==================================================================================================================================
</TABLE>
(1) Subject to the following sentence, there is being registered hereunder an
indeterminate number of Capital Securities of North Fork Capital Trust II
and North Fork Capital Trust III (collectively, the "Trusts") and an
indeterminate principal amount of Junior Subordinated Debt Securities of
North Fork Bancorporation, Inc. ("North Fork" or the "Corporation"). In no
event will the aggregate initial offering price of the Capital Securities of
the Trusts issued under this Registration Statement exceed $100,000,000
exclusive of accrued interest and dividends, if any. A like amount of Junior
Subordinated Debt Securities may be issued and sold by North Fork to any of
the Trusts, in which event such Junior Subordinated Debt Securities may
later be distributed for no additional consideration to the holders of the
Capital Securities of such Trust upon a dissolution of such Trust and the
distribution of the assets thereof. The proposed maximum aggregate offering
price has been estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(o) under the Securities Act of 1933.
(2) The proposed maximum offering price per unit will be determined from time to
time in connection with the issuance of the securities registered hereunder.
(3) Includes the rights of holders of the Capital Securities under the
Guarantees and certain back-up undertakings, comprised of the obligations of
North Fork to provide certain indemnities in respect of, and pay and be
responsible for, certain costs, expenses, debts and liabilities of, each
Trust (other than with respect to the Capital Securities) and such
obligations of North Fork as set forth in the Declaration of Trust of each
Trust and the Indenture, in each case as amended from time to time and as
further described in the Registration Statement. The Guarantees, when taken
together with North Fork's obligations under the Junior Subordinated Debt
Securities, the Indenture and each Declaration of Trust, will provide a full
and unconditional guarantee on a subordinated basis by North Fork of
payments due on the Capital Securities. No separate consideration will be
received for any Guarantees or such back-up obligations.
(4) 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
PROSPECTUS
NORTH FORK CAPITAL TRUST II
NORTH FORK CAPITAL TRUST III
CAPITAL SECURITIES
NORTH FORK BANCORPORATION, INC.
JUNIOR SUBORDINATED DEBT SECURITIES
------------------------
North Fork Capital Trust II and North Fork Capital Trust III (each a "North
Fork Capital Trust"), each a statutory business trust formed under the laws of
the State of Delaware, may offer, from time to time, Capital Securities,
representing undivided beneficial interests in the assets of the respective
North Fork Capital Trusts ("Capital Securities"). The payment of distributions
with respect to Capital Securities of each of the North Fork Capital Trusts out
of moneys held by each of the North Fork Capital Trusts, and payment on
liquidation, redemption or otherwise with respect to such Capital Securities,
will be guaranteed by North Fork Bancorporation, Inc., a Delaware corporation
("North Fork" or the "Corporation"), to the extent described herein (each a
"Guarantee"). See "Description of the Guarantees" below. The Corporation's
obligations under the Guarantees will be subordinate and junior in right of
payment to all other liabilities of the Corporation, if any, issued from time to
time by the Corporation. Junior Subordinated Debt Securities (as defined below)
may be issued and sold by the Corporation from time to time in one or more
series to a North Fork Capital Trust, or a trustee of such North Fork Capital
Trust, in connection with the investment of the proceeds from the offering of
Capital Securities and Common Securities (as defined herein) of such North Fork
Capital Trust. The Junior Subordinated Debt Securities purchased by a North Fork
Capital Trust may be subsequently distributed pro rata to holders of Capital
Securities and Common Securities in connection with the dissolution of such
North Fork Capital Trust upon the occurrence of certain events as may be
described in an accompanying Prospectus Supplement.
(Continued on next page)
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
------------------------
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 Offered Securities may be offered directly, through agents designated
from time to time, to or through underwriters or dealers or through a
combination of such methods. See "Plan of Distribution." If any agents of the
Corporation, any North Fork Capital Trust or any underwriters are involved in
the sale of the Offered Securities, the names of such agents or underwriters and
any applicable commissions or discounts will be set forth in the Prospectus
Supplement with respect to such Offered Securities. The net proceeds to the
Corporation from such sale also will be set forth in the applicable Prospectus
Supplement.
------------------------
The date of this Prospectus is November 21, 1997.
<PAGE> 3
(Continued from front cover)
The Junior Subordinated Debt Securities, the Capital Securities and the
related Guarantees are collectively referred to as the "Offered Securities." The
Capital Securities and Common Securities are collectively referred to as the
"Trust Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered, such as, where applicable, (i) in the case of
Junior Subordinated Debt Securities, the specific designation, aggregate
principal amount, currency, denomination, maturity, priority, interest rate
(which may be variable or fixed), time of payment of interest, terms of
redemption at the option of the Corporation or repayment at the option of the
holder or any provisions for sinking fund payments, the designation of the
Trustee (as defined in the applicable Indenture or Supplemental Indenture)
acting under the applicable Indenture or Supplemental Indenture and the initial
public offering price and (ii) in the case of Capital Securities or the related
Guarantees, the specific designation, aggregate offering amount, denomination,
term, coupon rate, time of payment of distributions, terms of redemption at the
option of the Corporation or repayment at the option of the holder, the
designation of the Trustee acting under the applicable Indenture, Supplemental
Indenture (as defined herein) or Guarantee and the initial public offering
price, will be set forth in the accompanying Prospectus Supplement.
The Offered Securities will be issued only in registered form, including in
the form of Global Securities, unless otherwise set forth in the Prospectus
Supplement.
------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT OR THE DOCUMENTS INCORPORATED OR DEEMED INCORPORATED BY
REFERENCE HEREIN, AND ANY INFORMATION OR REPRESENTATIONS NOT CONTAINED HEREIN OR
THEREIN MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR
BY ANY AGENT, DEALER OR UNDERWRITER. THIS PROSPECTUS AND ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY THE SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT NOR ANY SALE OF OR OFFER TO SELL THE OFFERED SECURITIES
OFFERED HEREBY SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION SINCE THE RESPECTIVE DATES
OF THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT OR THAT THE INFORMATION IN THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE RESPECTIVE DATES OF THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT.
2
<PAGE> 4
AVAILABLE INFORMATION
This Prospectus constitutes a part of a combined Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Corporation and the North Fork Capital Trusts with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the Offered
Securities. This Prospectus and any accompanying Prospectus Supplement do not
contain all of the information set forth in such Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. Reference is made to such Registration Statement and to the exhibits
relating thereto for further information with respect to the Corporation, the
North Fork Capital Trusts, and the Offered Securities. Any statements contained
herein concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission or incorporated by
reference herein are not necessarily complete, and, in each instance, reference
is made to the copy of such document so filed for a more complete description of
the matter involved. Each such statement is qualified in its entirety by such
reference.
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 and other information with the Commission.
Such reports and other information may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and the Commission's regional
offices at Suite 1300, Seven World Trade Center, New York, New York 10048, and
at The Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material also can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission maintains a web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission. Such reports, proxy and
information statements and other information may be found on the Commission's
web site address, http://www.sec.gov. In addition, certain securities of the
Corporation are listed on the New York Stock Exchange, Inc. (the "NYSE").
Material filed by the Corporation may be inspected at the offices of the NYSE at
20 Broad Street, New York, New York 10005.
No separate financial statements of the Trusts have been included herein.
The Corporation and the Trusts do not consider that such financial statements
would be material to holders of the Capital Securities because the Trusts are
newly formed special purpose entities, have no operating history or independent
operations and are not engaged in and do not propose to engage in any activity
other than holding as trust assets the Junior Subordinated Debt Securities and
issuing the Trust Securities. See "THE TRUSTS," "DESCRIPTION OF THE CAPITAL
SECURITIES," "DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES" and
"DESCRIPTION OF THE GUARANTEE." In addition, the Corporation does not expect
that the Trusts will file reports under the Exchange Act with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have been filed with the Commission by the
Corporation pursuant to the Exchange Act are hereby incorporated by reference:
(i) Annual Report on Form 10-K for the year ended December 31, 1996;
(ii) Current Reports on Form 8-K dated February 25, 1997, April 10,
1997, April 22, 1997, June 24, 1997, July 25, 1997, October 7, 1997,
October 15, 1997 and November 20, 1997.
(iii) Quarterly Reports on Form 10-Q for the three months ended March
31, 1997, June 30, 1997 and September 30, 1997.
(iv) The Joint Proxy Statement/Prospectus of the Corporation and
Branford Savings Bank ("Branford"), dated November 7, 1997, relating to the
Branford Merger (as defined herein) (the "Joint Proxy
Statement/Prospectus").
3
<PAGE> 5
All documents 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 securities offered hereby shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Any statement contained 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 and the accompanying Prospectus Supplement to
the extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or the accompanying Prospectus Supplement.
The Corporation will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus and the accompanying Prospectus
Supplement is delivered, upon written or oral request of such person, a copy of
any and all documents incorporated herein by reference (not including exhibits
to such documents, unless such exhibits are specifically incorporated by
reference into such documents). Requests should be directed to North Fork
Bancorporation, Inc., 275 Broad Hollow Road, Melville, New York 11747,
Attention: Anthony Abate, Secretary (telephone number: (516) 844-1004).
THIS PROSPECTUS AND THE PORTIONS OF THE JOINT PROXY STATEMENT/PROSPECTUS
INCORPORATED BY REFERENCE HEREIN CONTAINS CERTAIN FORWARD LOOKING STATEMENTS
WITH RESPECT TO THE FINANCIAL CONDITION, RESULTS OF OPERATIONS AND BUSINESS OF
NORTH FORK, INCLUDING STATEMENTS RELATING TO THE COST SAVINGS AND REVENUE
ENHANCEMENTS THAT ARE EXPECTED TO BE REALIZED FROM THE BRANFORD MERGER AND THE
NEW YORK BANCORP MERGER (EACH AS DEFINED HEREIN, AND TOGETHER, THE "MERGERS").
FACTORS THAT MAY CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE
CONTEMPLATED BY SUCH FORWARD LOOKING STATEMENTS INCLUDE, AMONG OTHERS, THE
FOLLOWING POSSIBILITIES: (1) EXPECTED COST SAVINGS OR REVENUE ENHANCEMENTS FROM
THE MERGERS CANNOT BE FULLY REALIZED; (2) DEPOSIT ATTRITION, CUSTOMER LOSS OR
REVENUE LOSS FOLLOWING THE MERGERS IS GREATER THAN EXPECTED; (3) COMPETITIVE
PRESSURE IN THE BANKING AND FINANCIAL SERVICES INDUSTRY INCREASES SIGNIFICANTLY;
(4) CHANGES IN THE INTEREST RATE ENVIRONMENT REDUCE MARGINS; AND (5) GENERAL
ECONOMIC CONDITIONS, EITHER NATIONALLY OR IN THE STATE OF NEW YORK, ARE LESS
FAVORABLE THAN EXPECTED.
USE OF PROCEEDS
All of the proceeds from the sale of the Trust Securities will be invested
by the North Fork Capital Trusts in Junior Subordinated Debt Securities. The
Corporation intends to apply the net proceeds from the sale of the Junior
Subordinated Debt Securities to its general funds to be used by its management
for general corporate purposes.
THE TRUSTS
Each of North Fork Capital Trust II and North Fork Capital Trust III is a
statutory business trust formed under Delaware law pursuant to (i) a separate
declaration of Trust (each a "Declaration") executed by the Corporation, as
depositor for such trust (the "Depositor") and the North Fork Capital Trustees
(as defined herein) for such trust and (ii) the filing of a certificate of trust
with the Delaware Secretary of State on November 14, 1997. Each Declaration will
be qualified as an indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). The North Fork Capital Trusts exist for the
exclusive purposes of (i) issuing the Capital Securities and common securities
representing undivided beneficial interests in the assets of such Trust (the
"Common Securities"), (ii) investing the gross proceeds of the Trust Securities
in Junior Subordinated Debt Securities (as defined below) and
4
<PAGE> 6
(iii) engaging in only those other activities necessary or incidental thereto.
All of the Common Securities will be directly or indirectly owned by the
Corporation. The Common Securities will rank pari passu, and payments will be
made thereon pro rata, with the Capital Securities except that upon an event of
default under the applicable Declaration, the rights of the holders of the
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption, and otherwise will be subordinated to the rights of the
holders of the Capital Securities. The Corporation will, directly or indirectly,
acquire Common Securities in an aggregate liquidation amount equal to 3% of the
total capital of each North Fork Capital Trust. Each North Fork Capital Trust's
business and affairs will be conducted by the trustees (the "North Fork Capital
Trustees") appointed by the Corporation, as the direct or indirect holder of all
the Common Securities. Except in certain limited circumstances the holder of the
Common Securities will be entitled to appoint, remove or replace any of, or
increase or reduce the number of, the North Fork Capital Trustees of a North
Fork Capital Trust. The duties and obligations of the North Fork Capital
Trustees shall be governed by the Declaration of such North Fork Capital Trust.
A majority of the North Fork Capital Trustees of each North Fork Capital Trust
will be persons who are employees or officers of or affiliated with the
Corporation (the "Administrative Trustees"). One North Fork Capital Trustee of
each North Fork Capital Trust will be a financial institution which will be
unaffiliated with the Company and which shall act as property trustee and as
indenture trustee for purposes of the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), pursuant to the terms set forth in a Prospectus
Supplement (the "Property Trustee"). In addition, unless the Property Trustee
maintains a principal place of business in the State of Delaware, and otherwise
meets the requirements of applicable law, one North Fork Capital Trustee of each
North Fork Capital Trust will have its principal place of business or reside in
the State of Delaware (the "Delaware Trustee"). The Corporation will pay all
fees and expenses related to the North Fork Capital Trusts and the offering of
Trust Securities, the payment of which will be guaranteed by the Corporation.
The office of the Delaware Trustee for each North Fork Capital Trust in the
State of Delaware is Bankers Trust (Delaware), 1011 Centre Road, Suite 200,
Wilmington, Delaware 19805-1266. The principal executive office of each North
Fork Capital Trust shall be c/o North Fork Bancorporation, Inc., 275 Broad
Hollow Road, Melville, New York 11747, Attention: Anthony Abate, Secretary
(telephone number: (516) 844-1004).
5
<PAGE> 7
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 80 retail banking
facilities throughout Suffolk and Nassau Counties on Long Island, New York, as
well as in the New York City boroughs of Manhattan, Queens and the Bronx and in
Westchester and Rockland Counties north of New York City. North Fork's proposed
acquisition of Branford Savings Bank (see below) represents North Fork's initial
acquisition outside the State of New York.
At September 30, 1997, North Fork had assets of $6.6 billion, deposits of
$4.5 billion and stockholders' equity of $538 million. 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.
On October 7, 1997, North Fork entered into an agreement and plan of merger
with New York Bancorp Inc. ("New York Bancorp") pursuant to which New York
Bancorp will be merged (the "New York Bancorp Merger") with and into North Fork.
As of September 30, 1997, New York Bancorp had assets of approximately $3.2
billion, deposits of approximately $1.7 billion and stockholders' equity of
approximately $169 million. New York Bancorp serves customers from its primary
subsidiary, Home Federal, which operates thirty-one full service branch offices
throughout Kings, Queens, Nassau, Westchester and Suffolk Counties of New York.
Immediately after the New York Bancorp Merger, Home Federal will be merged with
and into North Fork Bank. In connection with this transaction, North Fork will
issue 1.19 shares of North Fork Common Stock for each New York Bancorp share.
The New York Bancorp Merger is expected to be consummated in the first quarter
of 1998 and will be accounted for under the pooling of interests accounting
method.
On July 24, 1997, North Fork entered into an agreement and plan of merger
with Branford Savings Bank ("Branford"), a Connecticut-chartered savings bank,
pursuant to which Branford will be merged (the "Branford Merger") with and into
a wholly-owned subsidiary of North Fork. At September 30, 1997, Branford had
$183 million in total assets, $162 million in deposits, $18 million in
stockholders' equity and serves customers from five branches in the Connecticut
towns of Branford, North Branford and East Haven and surrounding communities in
New Haven County, Connecticut. The Branford Merger represented North Fork's
initial acquisition outside the State of New York. In connection with this
transaction, North Fork will issue approximately 1,283,674 shares of North Fork
Common Stock. The Branford Merger is expected to be consummated prior to
December 31, 1997 and will be accounted for under the purchase method of
accounting.
On December 31, 1996, North Fork completed a business combination with
North Side by merging North Side with and into North Fork Bank. At closing,
North Side had $1.6 billion in total assets, $1.2 billion in deposits, $124.4
million in capital and operated seventeen full service banking locations in the
New York City boroughs of the Bronx and Queens and Nassau and Suffolk Counties.
In March, 1996, North Fork Bank completed its purchase of the domestic
commercial banking business of Extebank, which at closing had approximately $387
million in assets and $348 million in deposits, for $47 million in cash.
Additionally, during March 1996, North Fork Bank completed its acquisition of
ten Long Island branches of First Nationwide Bank, and assumed $572 million in
customer deposit liabilities, for which it paid a deposit premium of 6.35%.
In July, 1995, North Fork completed its purchase acquisition of Great Neck
Bancorp, the parent company of Bank of Great Neck, a Long Island based
commercial bank ("Great Neck"). Great Neck, with assets of $91 million,
including $49.4 million in net loans, and $90.3 million in deposits, was merged
into North Fork Bank.
In November, 1994, North Fork completed a business combination with Metro,
the parent company of Bayside Federal Savings Bank ("Bayside"), by merging Metro
with and into North Fork. Simultaneously, Bayside (with approximately $1.0
billion in assets, $.9 billion in deposits and $83.5 million in stockholders'
equity, operating through 13 full-service banking locations in the New York City
borough of
6
<PAGE> 8
Queens and Nassau and Suffolk Counties) was merged with and into North Fork
Bank. The merger was accounted for as a pooling of interests.
North Fork, through North Fork Bank, provides a variety of banking and
financial services to middle market and small business organizations, local
governmental units, and retail customers in the metropolitan New York area.
From time to time, North Fork investigates and holds discussions and
negotiations in connection with possible transactions with other banks. As of
the date of this Prospectus, North Fork has not entered into any agreements or
understandings with respect to any significant transactions of the type referred
to above except for the transactions described herein and in documents
incorporated herein by reference. See "AVAILABLE INFORMATION" and "INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE." Any such transaction would be subject to
stockholder approval only if required under applicable law or the rules of the
NYSE.
For more information about North Fork, reference is made to the 1996 North
Fork Form 10-K which is incorporated herein by reference. See "AVAILABLE
INFORMATION" and "INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE."
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Corporation for each of the following periods:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
---------------- -----------------------------------------
1997 1996 1996 1995 1994 1993 1992
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges (excluding
interest on deposits)... 3.60 4.32 3.87 5.73 4.35 2.81 3.69
Raio of earnings to fixed
charges (including
interest on deposits)... 1.91 1.74 1.64 1.83 1.61 1.19 1.16
</TABLE>
For the purpose of computing the ratio of earnings to fixed charges,
earnings consist of income before income taxes, extraordinary items and
cumulative effect of changes in accounting principle, plus fixed charges
(excluding capitalized interest but including amortization of amounts previously
capitalized), less equity in undistributed earnings of companies owned less than
50 percent. Fixed charges consist of interest (including capitalized interest)
on all indebtedness, amortization of debt discount and expense, and that portion
of rental expense which the Corporation believes to be representative of
interest. A statement setting forth the computation of the unaudited ratio of
earnings to fixed charges has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part.
7
<PAGE> 9
DESCRIPTION OF THE CAPITAL SECURITIES
Each North Fork Capital Trust may issue, from time to time, only one series
of Capital Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of Trust of each North Fork Capital Trust
authorizes the Administrative Trustees of such North Fork Capital Trust to issue
on behalf of such North Fork Capital Trust one series of Capital Securities. The
Declaration of Trust will be qualified as an indenture under the Trust Indenture
Act. The Capital Securities will have such terms, including distributions,
redemption, voting, liquidation rights and such other preferred, deferred or
other special rights or such restrictions as shall be set forth in the
Declaration of Trust or made part of the Declaration of Trust by the Trust
Indenture Act. Reference is made to the Prospectus Supplement relating to the
Capital Securities of the North Fork Capital Trust for specific terms, including
(i) the distinctive designation of such Capital Securities; (ii) the number of
Capital Securities issued by such North Fork Capital Trust; (iii) the annual
distribution rate (or method of determining such rate) for Capital Securities
issued by such North Fork Capital Trust and the date or dates upon which such
distributions shall be payable; provided, however, that distributions on such
Capital Securities shall be payable on a semi-annual basis to holders of such
Capital Securities as of a record date in each semi-annual period during which
such Capital Securities are outstanding; (iv) whether distributions on Capital
Securities issued by such North Fork Capital Trust shall be cumulative, and, in
the case of Capital Securities having such cumulative distribution rights, the
date or dates or method of determining the date or dates from which
distributions on Capital Securities issued by such North Fork Capital Trust
shall be cumulative; (v) the amount or amounts which shall be paid out of the
assets of such North Fork Capital Trust to the holders of Capital Securities of
such North Fork Capital Trust upon voluntary or involuntary dissolution,
winding-up or termination of such North Fork Capital Trust; (vi) the obligation,
if any, of such North Fork Capital Trust to purchase or redeem Capital
Securities issued by such North Fork Capital Trust, the price or prices at
which, the period or periods within which, and the terms and conditions upon
which, Capital Securities issued by such North Fork Capital Trust shall be
purchased or redeemed, in whole or in part, pursuant to such obligation; (vii)
the voting rights, if any, of Capital Securities issued by such North Fork
Capital Trust in addition to those required by law, including the number of
votes per Capital Security and any requirement for the approval by the holders
of Capital Securities, or of Capital Securities issued by one or more North Fork
Capital Trusts, or of both, as a condition to specified action or amendments to
the Declaration of Trust of such North Fork Capital Trust; (viii) the terms and
conditions, if any, upon which the assets of such North Fork Capital Trust may
be distributed to holders of Capital Securities; (ix) if applicable, any
securities exchange upon which the Capital Securities shall be listed; and (x)
any other relevant rights, preferences, privileges, limitations or restrictions
of Capital Securities issued by such North Fork Capital Trust not inconsistent
with the Declaration of Trust of such North Fork Capital Trust or with
applicable law. All Capital Securities offered hereby will be guaranteed by the
Corporation to the extent set forth below under "Description of the Guarantees."
Any United States Federal income tax considerations applicable to any offering
of Capital Securities will be described in the Prospectus Supplement relating
thereto.
In connection with the issuance of Capital Securities, each North Fork
Capital Trust will issue one series of Common Securities. The Declaration of
Trust of each North Fork Capital Trust authorizes the Administrative Trustees of
such trust to issue on behalf of such North Fork Capital Trust one series of
Common Securities having such terms including distributions, redemption, voting,
liquidation rights or such restrictions as shall be set forth therein. The terms
of the Common Securities issued by a North Fork Capital Trust will be
substantially identical to the terms of the Capital Securities issued by such
trust and the Common Securities will rank pari passu, and payments will be made
thereon pro rata, with the Capital Securities except that, upon an event of
default under the Declaration of Trust, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Capital Securities. Except in certain limited circumstances, the Common
Securities will also carry the right to vote to appoint, remove or replace any
of the North Fork Capital Trustees of a North Fork Capital Trust. All of the
Common Securities of each North Fork Capital Trust will be directly or
indirectly owned by the Corporation.
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
Junior Subordinated Debt Securities may be issued from time to time in one
or more series under an indenture (the "Indenture"), between the Corporation and
Bankers Trust Company, as trustee (the "Debenture Trustee") which was filed as
an exhibit to the Registration Statement on Form S-4 (File No. 333-24419) as
filed by the Corporation and North Fork Capital Trust I with the Commission on
April 2, 1997. The terms of the Junior Subordinated Debt Securities will include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The following summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the Indenture and the Trust Indenture Act.
Whenever particular provisions or defined terms in the Indenture are referred to
herein, such provisions or defined terms are incorporated by reference herein.
Section and Article references used herein are references to provisions of the
Indenture unless otherwise noted.
GENERAL
The 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 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
subordinated to all Senior Debt and effectively subordinated to all existing and
future liabilities of the Corporation 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. 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 Junior Subordinated Debt Securities are
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 special
committee appointed thereby and set forth in an Officer's Certificate (each, a
"Supplemental Indenture").
In the event Junior Subordinated Debt Securities are issued to a North Fork
Capital Trust or a trustee of such trust in connection with the issuance of
Trust Securities by such North Fork Capital Trust, such Junior Subordinated Debt
Securities subsequently may be distributed pro rata to the holders of such Trust
Securities in connection with the dissolution of such North Fork Capital Trust
upon the occurrence of certain events described in the Prospectus Supplement
relating to such Trust Securities. Only one series of Junior Subordinated Debt
Securities will be issued to a North Fork Capital Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such North Fork
Capital Trust.
Reference is made to the Prospectus Supplement relating to the particular
Junior Subordinated Debt Securities being offered thereby for the following
terms: (1) the designation of such Junior Subordinated Debt Securities; (2) the
aggregate principal amount of such Junior Subordinated Debt Securities; (3) the
percentage of their principal amount at which such Junior Subordinated Debt
Securities will be issued; (4) the date or dates on which such Junior
Subordinated Debt Securities will mature and the right, if any, to extend such
date or dates; (5) the rate or rates, if any, per annum, at which such Junior
Subordinated Debt Securities will bear interest, or the method of determination
of such rate or rates; (6) the date or dates from which such interest shall
accrue, the interest payment dates on which such interest will be payable or the
manner of determination of such interest payment dates and the record dates for
the determination of holders to whom interest is payable on any such interest
payment dates; (7) the right, if any, to extend the interest payment periods and
the duration of such extension; (8) provisions for a sinking purchase or other
analogous fund, if any; (9) the period or periods, if any, within which, the
price or prices of which, and the terms and conditions upon which such Junior
Subordinated Debt Securities may be redeemed, in whole or in part, at the option
of the Corporation or the holder; (10) the form of such Junior Subordinated Debt
Securities; and (11) any other specific terms
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of the Junior Subordinated Debt Securities. Principal, premium, if any, and
interest, if any, will be payable, and the Junior Subordinated Debt Securities
offered hereby will be transferable, at the corporate trust office of Bankers
Trust Company, as Property Trustee (the "Property Trustee") in New York, New
York, provided that payment of interest, if any, may be made at the option of
the Corporation by check mailed to the address of the person entitled thereto as
it appears in the Security Register.
If a Prospectus Supplement specifies that a series of Junior Subordinated
Debt Securities is denominated in a currency or currency unit other than United
States dollars, such Prospectus Supplement shall also specify the denomination
in which such Junior Subordinated Debt Securities will be issued and the coin or
currency in which the principal, premium, if any, and interest, if any, on such
Junior Subordinated Debt Securities will be payable, which may be United States
dollars based upon the exchange rate for such other currency or currency unit
existing on or about the time a payment is due.
The Indenture contains no covenants or other provisions to afford
protection to holders of the Junior Subordinated Debt Securities in the event of
a highly leveraged transaction or a change in control of the Corporation, except
to the limited extent described under "Consolidation, Merger, Sale of Assets and
Other Transactions" below.
DENOMINATIONS, REGISTRATION AND TRANSFER
The Junior Subordinated Debt Securities will be represented by one or more
global certificates registered in the name of Cede & Co. as the nominee of the
Depository Trust Company ("DTC") if, and only if, distributed to the holders of
the Trust Securities. Until such time, the Junior Subordinated Debt Securities
will be registered in the name of the Trust and held by the Property Trustee.
Should the Junior Subordinated Debt Securities be distributed to holders of the
Trust Securities, beneficial interests in the Junior Subordinated Debt
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by participants in DTC. Except as described below,
Junior Subordinated Debt Securities in certificated form will not be issued in
exchange for the global certificates.
A global security shall be exchangeable for 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 (as defined below). 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 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 Junior Subordinated Debt Securities are
issued in certificated form, such 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 Junior Subordinated Debt Securities represented by a global
security will be made to DTC, as the depositary for the Junior Subordinated Debt
Securities. In the event Junior Subordinated Debt Securities are issued in
certificated form, principal and interest will be payable, the transfer of the
Junior Subordinated Debt Securities will be registrable, and Junior Subordinated
Debt Securities will be exchangeable for 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
payment 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 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.
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PAYMENT AND PAYING AGENTS
Payment of principal of (and premium, if any) and any interest on 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 any 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
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 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 Junior Subordinated Debt Security
will be made to the person in whose name such 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 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 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 Junior Subordinated Debt
Security shall thereafter look, as a general unsecured creditor, only to the
Corporation for payment thereof.
RESTRICTIONS ON CERTAIN PAYMENTS
The Corporation covenants and agrees with each holder of Junior
Subordinated Debt Securities of a series issued to a North Fork Capital Trust
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
shares of the Corporation's capital stock (which includes common and preferred
stock), or (ii) make any payment of principal, interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Corporation that rank
pari passu with or junior in interest to the Junior Subordinated Debt Securities
of such series or (iii) make any guarantee payments with respect to any
guarantee by the Corporation of debt securities of any subsidiary of the
Corporation 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 related
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 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 covered 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 related Guarantee or (iii)
the Corporation shall have given notice of its election to begin 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.
The Corporation also covenants with each Holder of Junior Subordinated Debt
Securities of a series issued to a North Fork Capital Trust (i) to maintain
directly 100% ownership of the Common Securities of such North Fork Capital
Trust; provided, however, that any permitted successor of the Corporation
hereunder may succeed to the Corporation's ownership of such Common Securities,
(ii) not to voluntarily
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terminate, windup or liquidate such North Fork Capital Trust, except (a) in
connection with a distribution of the Junior Subordinated Debt Securities of
such series to the holders of Capital Securities in liquidation of such North
Fork Capital Trust or (b) in connection with certain mergers, consolidations or
amalgamations permitted by the related Declaration of Trust and (iii) to use its
reasonable efforts, consistent with the terms and provisions of such Declaration
of Trust, to cause such North Fork Capital Trust to remain classified as a
grantor trust and not an association taxable as a corporation for United States
Federal income tax purposes.
MODIFICATION OF INDENTURE
From time to time the Corporation and the Debenture Trustee may, without
the consent of the holders of 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
Junior Subordinated Debt Securities or the holders of the 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 Trustee, with the consent
of holders of not less than a majority in principal amount of Junior
Subordinated Debt Securities; provided, however, that no such modification may,
without the consent of the holder of each outstanding Junior Subordinated Debt
Security so affected, (i) change the Stated Maturity or reduce the principal
amount of the 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 Junior Subordinated Debt Securities, the holders of which
are required to consent to any such modification of the Indenture.
In addition, the Corporation and the Debenture Trustee may execute, without
the consent of any holder of 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 each series of Junior Subordinated Debt Securities that
has occurred and is continuing constitutes a "Debenture Event of Default":
i) failure for thirty days to pay any interest on the Junior
Subordinated Debt Securities of that series 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 Junior
Subordinated Debt Securities of that series 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 ninety 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 Junior
Subordinated Debt Securities of that series; or
iv) certain events in bankruptcy, insolvency or reorganization of the
Corporation; or
v) in respect of a series issued to a North Fork Capital Trust, the
voluntary or involuntary dissolution, winding-up or termination of such
North Fork Capital Trust, except in connection with the distribution of the
Junior Subordinated Debt Securities to the holders of Trust Securities in
liquidation of such North Fork Capital Trust, the redemption of all of the
Trust Securities of such North Fork Capital Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the related
Declaration of Trust.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities have the right to direct the time, method
and place of conducting any proceeding for any
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remedy available to the Debenture Trustee. The Debenture Trustee or the holders
of not less than 25% in aggregate outstanding principal amount of the 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 Junior Subordinated Debt Securities fail to make such
declaration, the holders of at least 25% in aggregate Liquidation Amount of the
Capital Securities shall have such right. The holders of a majority in aggregate
principal amount of the Outstanding Securities of the Capital Securities may
annul such declaration and waive the default if the default (other than the
non-payment of the principal of the Junior Subordinated Debt Securities which
has become due solely by such acceleration) has been cured and a sum sufficient
to pay all matured installations of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee. Should the holders
of Junior Subordinated Debt Securities fail to annul such declaration and waive
such default, the holders of a majority in aggregate liquidation amount of the
Capital Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities affected thereby may, on behalf of the
holders of all the 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 Junior Subordinated Debt Security.
Should the holders of such Junior Subordinated Debt Securities fail to annul
such declaration and waive such default, the holders of a majority in aggregate
liquidation amount of the 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 Junior Subordinated Debt Securities, and 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 Junior Subordinated Debt
Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF 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 Junior Subordinated Debt Securities on the date such interest
or principal is otherwise payable, a holder of 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 Capital Securities. Notwithstanding any payments made
to a holder of 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 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.
The holders of the 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 Junior Subordinated Debt Securities unless there shall
have been an Event of Default under the applicable Declaration of Trust.
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
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States or any state or the District of Columbia, and such successor Person
expressly assumes the Corporation's obligations on the 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
applicable Declaration and the applicable Guarantee and does not give rise to
any breach or violation of the applicable Declaration or the applicable
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 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 Junior Subordinated Debt Securities.
SUBORDINATION
The Junior Subordinated Debt Securities will be subordinated and junior in
right of payment to certain other indebtedness of the Corporation to the extent
set forth in the applicable Prospectus Supplement.
RESTRICTIONS ON TRANSFER
Unless otherwise provided in a Prospectus Supplement, the 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 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 Junior Subordinated Debt Securities for any purpose, including
but not limited to the receipt of payments on such Junior Subordinated Debt
Securities, and such transferee shall be deemed to have no interest whatsoever
in such Junior Subordinated Debt Securities.
GOVERNING LAW
The Indenture and the 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
Subject to all the duties and responsibilities specified with respect to an
indenture trustee under the Trust Indenture Act, 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 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 THE GUARANTEES
Set forth below is a summary of information concerning the Guarantees which
will be executed and delivered by the Corporation for the benefit of the holders
from time to time of Capital Securities. Each Guarantee will be qualified as an
indenture under the Trust Indenture Act. Bankers Trust Company will act as
indenture trustee under each Guarantee (the "Guarantee Trustee"). The terms of
each Guarantee will be those set forth in such Guarantee and those made part of
such Guarantee by the Trust Indenture Act. The summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the form of Guarantee, which is filed as an
exhibit to the Registration Statement of which this Prospectus forms a part, and
the Trust Indenture Act. Each
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Guarantee will be held by the Guarantee Trustee for the benefit of the holders
of the Capital Securities of the applicable North Fork Capital Trust.
GENERAL
Pursuant to each Guarantee, the Corporation will irrevocably agree, to the
extent set forth therein, to pay in full on a subordinated basis to the holders
of the Capital Securities issued by a North Fork Capital Trust, the Guarantee
Payments (as defined herein) (except to the extent paid by such North Fork
Capital Trust), as and when due, regardless of any defense, right of set-off or
counterclaim which such North Fork Capital Trust may have or assert other than
the defense of payment. The following payments with respect to Capital
Securities issued by a North Fork Capital Trust, to the extent not paid by such
North Fork Capital Trust (the "Guarantee Payments"), will be subject to the
Guarantee thereon (without duplication): (i) any accrued and unpaid
distributions which are required to be paid on such Capital Securities, to the
extent such North Fork Capital Trust shall have funds available therefor; (ii)
the applicable redemption price, including all accrued and unpaid distributions
(the "Redemption Price"), to the extent such North Fork Capital Trust has funds
available therefor, with respect to any Capital Securities called for redemption
by such North Fork Capital Trust and (iii) upon a voluntary or involuntary
dissolution, winding-up or liquidation of such North Fork Capital Trust (other
than in connection with the distribution of the assets of such North Fork
Capital Trust to the holders of Capital Securities or the redemption of all of
the Capital Securities), the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid distributions on such Capital Securities to
the date of payment, to the extent such North Fork Capital Trust has funds
available therefor and (b) the amount of assets of such North Fork Capital Trust
remaining available for distribution to holders of such Capital Securities in
liquidation of such North Fork Capital Trust after satisfaction of liabilities
to creditors of such North Fork Capital 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 Capital
Securities or by causing the applicable North Fork Capital Trust to pay such
amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a subordinated basis
with respect to the Capital Securities issued by the applicable North Fork
Capital Trust, but will not apply to any payment of distributions except to the
extent such North Fork Capital Trust shall have funds available therefor, and is
not a guarantee of collection. If the Corporation does not make interest
payments on the Junior Subordinated Debt Securities purchased by a North Fork
Capital Trust, such North Fork Capital Trust will not pay distributions on the
Capital Securities issued by such North Fork Capital Trust and will not have
funds legally available therefor.
The Corporation has also agreed separately to irrevocably and
unconditionally guarantee the obligations of the North Fork Capital Trusts with
respect to the Common Securities (the "Common Securities Guarantees") to the
same extent as the Guarantees, except that upon an event of default under the
Indenture, holders of Capital Securities shall have priority over holders of
Common Securities with respect to distributions and payments on liquidation,
redemption or otherwise.
STATUS OF THE GUARANTEES
The Guarantees will constitute unsecured obligations of the Corporation and
will rank subordinate and junior in right of payment to all Senior Debt in the
same manner as Junior Subordinated Debt Securities.
Each Guarantee will rank pari passu with all Other Guarantees (as defined
therein) issued by the Corporation. The Guarantees 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 Guarantee without first instituting a legal proceeding against any other
person or entity). Each Guarantee will be held for the benefit of the holders of
the Capital Securities. The Guarantees will not be discharged except by payment
of the Guarantee Payments in full to the extent not paid by the applicable North
Fork Capital Trust or upon distribution to the holders of the Capital Securities
of the Junior
15
<PAGE> 17
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 Capital Securities (in which case no vote will be
required), each 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 Capital Securities. The manner of obtaining any such approval will
be as set forth in an accompanying Prospectus Supplement. All guarantees and
agreements contained in a Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Corporation and shall inure to
the benefit of the holders of the Capital Securities then outstanding.
EVENTS OF DEFAULT
An event of default under a 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
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 a Guarantee or to direct the exercise of any trust or power conferred
upon the Guarantee Trustee under a Guarantee.
Any holder of the Capital Securities may institute a legal proceeding
directly against the Corporation to enforce its rights under a Guarantee without
first instituting a legal proceeding against the applicable North Fork Capital
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 each
Guarantee.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
Each 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 an 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 such Guarantee; (ii)
immediately after giving effect thereto, no event of default under such
Guarantee, and no event which, after notice or lapse of time or both, would
become an event of default under such Guarantee, shall have happened and be
continuing; (iii) such transaction is permitted under the applicable Declaration
of Trust and Indenture and does not give rise to any breach or violation of the
applicable Declaration of Trust or Indenture; and (iv) certain other conditions
as prescribed in such Guarantee are met.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Corporation in performance of a Guarantee, undertakes to
perform only such duties as are specifically set forth in such Guarantee and,
after default with respect to such Guarantee, 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 Guarantee Trustee is under no
obligation to exercise any of the power
16
<PAGE> 18
vested in it by a Guarantee at the request of any holder of Capital Securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred thereby.
TERMINATION
Each Guarantee will terminate and be of no further force and effect upon
full payment of the applicable Redemption Price of the Capital Securities issued
by the applicable North Fork Capital Trust or upon distribution of Junior
Subordinated Debt Securities to the holders of the Capital Securities. Each
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of Capital Securities issued by the applicable
North Fork Capital Trust must restore payment of any sums paid under the Capital
Securities or the Guarantee.
GOVERNING LAW
The Guarantees will be governed by and construed in accordance with the
laws of the State of New York.
PLAN OF DISTRIBUTION
The Corporation may sell the Junior Subordinated Debt Securities and any
North Fork Capital Trust may sell Capital Securities in any of, or any
combination of, the following ways: (i) directly to purchasers; (ii) through
agents, (iii) through underwriters, and (iv) through dealers.
Offers to purchase Offered Securities may be solicited directly by the
Corporation and/or any North Fork Capital Trust, as the case may be, or by
agents designated by the Corporation and/or any North Fork Capital Trust, as the
case may be, from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act of 1933, involved in
the offer or sale of the Offered Securities in respect of which this Prospectus
is delivered will be named, and any commissions payable by the Corporation to
such agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting in a best
efforts basis for the period of its appointment (ordinarily five business days
or less). Agents, dealers and underwriters may be customers of, engage in
transactions with, or perform services for the Corporation in the ordinary
course of business.
If an underwriter or underwriters are utilized in the sale, the Corporation
will execute an underwriting agreement with such underwriters at the time of
sale to them and the names of the underwriters and the terms of the transaction
will be set forth in the Prospectus Supplement, which will be used by the
underwriters to make releases of the Offered Securities in respect of which this
Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, the Corporation and/or any North Fork
Capital Trust, as the case may be, will sell such Offered Securities to the
dealer, as principal. The dealer may then resell such Offered Securities to the
public at varying prices to be determined by such dealer at the time of resale.
The name of the dealer and the terms of the transaction will be set forth in the
Prospectus Supplement.
Agents, underwriters, and dealers may be entitled under the relevant
agreements to indemnification by the Corporation and/or any North Fork Capital
Trust, as the case may be, against certain liabilities, including liabilities
under the Securities Act of 1933.
The place and time of delivery for the Offered Securities in respect of
which this Prospectus is delivered will be set forth in the Prospectus
Supplement.
VALIDITY OF SECURITIES
Certain matters relating to the validity of the Capital Securities, the
Junior Subordinated Debt Securities and the Guarantees, the enforceability of
the Declarations and the formation of the Trusts and certain matters relating
thereto will be passed upon on behalf of the Corporation and the North Fork
Capital Trusts by Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to
the Corporation and the North Fork Capital Trusts. Certain United States Federal
income taxation matters will be passed upon for the Corporation and the North
Fork Capital Trusts by Skadden, Arps, Slate, Meagher & Flom LLP, special tax
counsel to the Corporation and the North Fork Capital Trusts.
17
<PAGE> 19
EXPERTS
The consolidated financial statements of North Fork Bancorporation, Inc.
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 by reference herein and in the Registration Statement of which this
Prospectus is a part 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 these statements.
The consolidated financial statements of New York Bancorp Inc. and
subsidiaries as of September 30, 1996 and 1995 and for each of the years in the
three year period ended September 30, 1996, and for the periods ending June 30,
1997 and 1996, included in the Corporation's Current Report on Form 8-K dated
November 20, 1997 incorporated by reference into this Prospectus, have been
incorporated by reference herein and in the Registration Statement of which this
Prospectus is a part in reliance upon the report of KPMG Peat Marwick LLP,
independent auditors, included in the Corporation's Current Report on Form 8-K
dated November 20, 1997 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 these statements.
ACCOUNTANTS
The consolidated financial statements of Branford Savings Bank as of
December 31, 1996 and 1995 and for each of the years in the three-year period
ended December 31, 1996, included in Branford's 1996 Form F-2 and incorporated
by reference into this Prospectus, have been incorporated by reference herein
and in the Registration Statement of which the Prospectus is a part in reliance
upon the report of Seward & Monde, independent auditors, included in Branford's
1996 Form F-2 and incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing.
18
<PAGE> 20
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFER MADE
HEREBY EXCEPT AS CONTAINED IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS AND, IF GIVEN OR MADE, NO SUCH INFORMATION OR REPRESENTATIONS SHOULD
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION, THE TRUST, THE
UNDERWRITERS OR ANY OF THEIR RESPECTIVE AGENTS. NEITHER THE DELIVERY OF THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE INFORMATION SET FORTH HEREIN OR IN THE AFFAIRS OF THE
CORPORATION OR THE TRUST SINCE THE DATE HEREOF. THIS PROSPECTUS SUPPLEMENT AND
THE ACCOMPANYING PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE CAPITAL SECURITIES 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 ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Certain ERISA Considerations..........
Incorporation of Certain Documents by
Reference...........................
Summary...............................
Risk Factors..........................
Use of Proceeds.......................
North Fork Capital Trust II...........
North Fork............................
Selected Historical Financial
Information.........................
The Merger............................
Pro Forma Condensed Combined Financial
Statements..........................
Capitalization........................
Accounting Treatment..................
Description of Capital Securities.....
Description of Junior Subordinated
Debt Securities.....................
Description of Guarantee..............
Relationship Among the Capital
Securities, the Junior Subordinated
Debt Securities and the Guarantee...
Certain United States Federal Income
Tax Consequences....................
Plan of Distribution..................
</TABLE>
$100,000,000
NORTH FORK CAPITAL
TRUST I
% CAPITAL TRUST PASS-THROUGH
SECURITIES(SM) (TRUPS(SM))
(LIQUIDATION AMOUNT $1,000 PER
CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
NORTH FORK
BANCORPORATION, INC.
SALOMON BROTHERS INC
PROSPECTUS SUPPLEMENT
DATED NOVEMBER , 1997
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are:
<TABLE>
<S> <C>
Filing Fee for Registration Statement.................................. $ 30,303
Legal Fees and Expenses................................................ 75,000
Accounting Fees and Expenses........................................... 30,000
Printing and Engraving Fees............................................ 125,000
Trustee's expenses..................................................... 10,000
Miscellaneous.......................................................... 10,000
--------
Total.................................................................. $280,303
</TABLE>
ITEM 15. 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 Corporation 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' policy.
Article Seventh of the Restated Certificate of Incorporation of the
Corporation and Article IX of the Bylaws of the Corporation provides 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 17. UNDERTAKINGS.
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act"); (ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement (notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement); and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
II-1
<PAGE> 22
Provided, however, that (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those items is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") that are incorporated by reference to this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrants hereby further undertake that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act each filing of a Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15 (d) of the Exchange) 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
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 Securities 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 Securities 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> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, North Fork
Bancorporation, Inc. has duly caused this Amendment No. 1 to the 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 21st
day of November, 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 Amendment
No. 1 to the 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 November 21, 1997
- ------------------------------------------ Officer and Chairman of the
John A. Kanas Board
* Executive Vice President and November 21, 1997
- ------------------------------------------ Chief Financial Officer
Daniel M. Healy
* Vice Chairman of the Board November 21, 1997
- ------------------------------------------
John Bohlsen
* Vice Chairman of the Board November 21, 1997
- ------------------------------------------
Thomas M. O'Brien
* Director November 21, 1997
- ------------------------------------------
Irvin L. Cherashore
/s/ ALLAN C. DICKERSON Director November 21, 1997
- ------------------------------------------
Allan C. Dickerson
/s/ LLOYD A. GERARD Director November 21, 1997
- ------------------------------------------
Lloyd A. Gerard
* Director November 21, 1997
- ------------------------------------------
James F. Reeve
* Director November 21, 1997
- ------------------------------------------
George H. Rowsom
</TABLE>
II-3
<PAGE> 24
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ----------------------------- ------------------
<C> <S> <C>
* Director November 21, 1997
- ------------------------------------------
Raymond W. Terry
* Director November 21, 1997
- ------------------------------------------
Kurt R. Schmeller
*By: /s/ DANIEL M. HEALY Executive Vice President and November 21, 1997
- ------------------------------------------ Chief Financial Officer
Daniel M. Healy
Attorney In Fact
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, North Fork
Capital Trust II has duly caused this Amendment No. 1 to the 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 21st day
of November, 1997.
NORTH FORK CAPITAL TRUST II
By: /s/ DANIEL M. HEALY
------------------------------------
Daniel M. Healy
as Administrative Trustee
By: /s/ JOHN N. DIGIACOMO
------------------------------------
John N. DiGiacomo
as Administrative Trustee
Pursuant to the requirements of the Securities Act of 1933, North Fork
Capital Trust III has duly caused this Amendment No. 1 to the 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 21st day
of November, 1997.
NORTH FORK CAPITAL TRUST III
By: /s/ DANIEL M. HEALY
------------------------------------
Daniel M. Healy
as Administrative Trustee
By: /s/ JOHN N. DIGIACOMO
------------------------------------
John N. DiGiacomo
as Administrative Trustee
II-4
<PAGE> 25
EXHIBIT INDEX
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -------------------------------------------------------------------------------
<C> <C> <S>
4.1 -- Indenture of North Fork Bancorporation, Inc. relating to the Junior
Subordinated Debt Securities (incorporated herein by reference to the
Registration Statement on Form S-4 (File No. 333-24419) filed with the
Commission on April 2, 1997)
4.2 -- Certificate of Trust of North Fork Capital Trust II*
4.3 -- Declaration of Trust of North Fork Capital Trust II*
4.4 -- Certificate of Trust of North Fork Capital Trust III*
4.5 -- Declaration of Trust of North Fork Capital Trust III*
4.6 -- Form of Amended and Restated Declaration of Trust for North Fork Capital Trust
II
4.7 -- Form of Amended and Restated Declaration of Trust for North Fork Capital Trust
III
4.8 -- Form of Guarantee Agreement of North Fork Bancorporation, Inc. relating to the
Capital Securities of North Fork Capital Trust II
4.9 -- Form of Guarantee Agreement of North Fork Bancorporation, Inc. relating to the
Capital Securities of North Fork Capital Trust III
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 relating to North Fork Bancorporation, Inc.
23.2 -- Consent to KPMG Peat Marwick LLP relating to New York Bancorp Inc.
23.3 -- Consent of Seward & Monde
23.4 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP
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, and the Amended and Restated Declarations of Trust of
North Fork Capital Trust II and North Fork Capital Trust III and the Guarantees
for the benefit of the holders of Capital Securities of North Fork Capital
Trust II and North Fork Capital Trust III
</TABLE>
- ---------------
* Previously filed.
II-5
<PAGE> 1
EXHIBIT 4.6
================================================================================
AMENDED AND RESTATED
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 HEREIN
Dated as of November , 1997
NORTH FORK CAPITAL TRUST II
================================================================================
<PAGE> 2
NORTH FORK CAPITAL TRUST II
Certain Sections of this Declaration of Trust relating to Sections
310 through 318 of the Trust Indenture Act of 1939:
Trust Indenture Declaration of
Act Section Trust Section
- --------------- --------------
ss.310(a)(1)................................................ 8.07
(a)(2).................................................. 8.07
(a)(3).................................................. 8.09
(a)(4).................................................. 2.07(a)(ii)
(b)..................................................... 8.08
ss.311(a)................................................... 8.13
(b)..................................................... 8.13
ss.312(a)................................................... 5.08
(b)..................................................... 5.08
(c)..................................................... 5.08
ss.313(a)................................................... 8.14(a)
(a)(4).................................................. 8.14(b)
(b)..................................................... 8.14(b)
(c)..................................................... 10.09
(d)..................................................... 8.14(c)
ss.314(a)................................................... 8.15
(b)..................................................... Not Applicable
(c)(1).................................................. 8.16
(c)(2).................................................. 8.16
(c)(3).................................................. Not Applicable
(d)..................................................... Not Applicable
(e)..................................................... 1.01, 8.16
8.01(a),
ss.315(a)................................................... 8.03(a)
(b)..................................................... 8.02, 10.09
(c)..................................................... 8.01(a)
(d)..................................................... 8.01, 8.03
(e)..................................................... Not Applicable
ss.316(a)................................................... Not Applicable
(a)(1)(A)............................................... Not Applicable
(a)(1)(B)............................................... Not Applicable
(a)(2).................................................. Not Applicable
(b)..................................................... 5.13
(c)..................................................... 6.07
ss.317(a)(1)................................................ Not Applicable
(a)(2).................................................. Not Applicable
(b)..................................................... 5.10
ss.318(a)................................................... 10.11
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Declaration of Trust.
<PAGE> 3
TABLE OF CONTENTS
Page
----
ARTICLE I
Defined Terms
SECTION 1.1 Definitions.............................................. 2
ARTICLE II
Continuation of the Trust
SECTION 2.1 Name..................................................... 16
SECTION 2.2 Office of the Delaware Trustee;
Principal Place of Business.......................... 16
SECTION 2.3 Organizational Expenses.................................. 16
SECTION 2.4 Issuance of the Capital Securities....................... 17
SECTION 2.5 Issuance of the Common Securities;
Subscription and Purchase of Junior
Subordinated Debt Securities......................... 17
SECTION 2.6 Declaration of Trust..................................... 18
SECTION 2.7 Authorization to Enter into Certain
Transactions......................................... 18
SECTION 2.8 Assets of Trust.......................................... 24
SECTION 2.9 Title to Trust Property.................................. 24
ARTICLE III
Payment Account
SECTION 3.1 Payment Account.......................................... 24
ARTICLE IV
Distributions; Redemption
SECTION 4.1 Distributions............................................ 25
SECTION 4.2 Redemption............................................... 27
SECTION 4.3 Subordination of Common Securities....................... 30
SECTION 4.4 Payment Procedures....................................... 31
SECTION 4.5 Tax Returns and Reports.................................. 31
SECTION 4.6 Payment of Taxes; Duties, etc. of the
Trust................................................ 32
SECTION 4.7 Payments Under Indenture................................. 32
i
<PAGE> 4
Page
----
ARTICLE V
Trust Securities Certificates
SECTION 5.1 Initial Ownership........................................ 32
SECTION 5.2 Trust Securities Certificates............................ 32
SECTION 5.3 Execution and Delivery of Trust
Securities Certificates.............................. 33
SECTION 5.4 Global Capital Security.................................. 33
SECTION 5.5 Registration of Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Capital Securities
Certificates; Securities Act
Legends.............................................. 36
SECTION 5.6 Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates........................ 43
SECTION 5.7 Persons Deemed Securityholders........................... 44
SECTION 5.8 Access to List of Securityholders'
Names and Addresses.................................. 44
SECTION 5.9 Maintenance of Office or Agency;
Transfer Agent....................................... 44
SECTION 5.10 Appointment of Paying Agent.............................. 45
SECTION 5.11 Ownership of Common Securities by
Depositor............................................ 46
SECTION 5.12 Notices to Clearing Agency............................... 46
SECTION 5.13 Rights of Securityholders................................ 46
ARTICLE VI
Acts of Securityholders; Meetings; Voting
SECTION 6.1 Limitations on Capital
Securityholder's Voting Rights....................... 50
SECTION 6.2 Notice of Meetings....................................... 51
SECTION 6.3 Meetings of Securityholders.............................. 51
SECTION 6.4 Voting Rights............................................ 52
SECTION 6.5 Proxies, etc............................................. 52
SECTION 6.6 Securityholder Action by Written
Consent.............................................. 53
SECTION 6.7 Record Date for Voting and Other
Purposes............................................. 53
SECTION 6.8 Acts of Securityholders.................................. 53
SECTION 6.9 Inspection of Records.................................... 55
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Page
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ARTICLE VII
Representations and Warranties
SECTION 7.1 Representations and Warranties of the
Property Trustee and the Delaware
Trustee.............................................. 55
SECTION 7.2 Representations and Warranties of
Depositor............................................ 57
ARTICLE VIII
The Trustees
SECTION 8.1 Certain Duties and Responsibilities...................... 57
SECTION 8.2 Events of Default Notices; Deferral of
Interest Payment Notices............................. 60
SECTION 8.3 Certain Rights of Property Trustee....................... 60
SECTION 8.4 Not Responsible for Recitals............................. 64
SECTION 8.5 May Hold Securities...................................... 64
SECTION 8.6 Compensation, Indemnity, Fees............................ 64
SECTION 8.7 Corporate Property Trustee Required;
Eligibility of Trustees.............................. 66
SECTION 8.8 Conflicting Interests.................................... 67
SECTION 8.9 Co-Trustees and Separate Trustee......................... 67
SECTION 8.10 Resignation and Removal; Appointment
of Successor......................................... 69
SECTION 8.11 Acceptance of Appointment by Successor................... 71
SECTION 8.12 Merger, Conversion, Consolidation or
Succession to Business............................... 73
SECTION 8.13 Preferential Collection of Claims
Against Depositor or Trust........................... 73
SECTION 8.14 Reports by Property Trustee.............................. 74
SECTION 8.15 Reports to the Property Trustee.......................... 75
SECTION 8.16 Evidence of Compliance with Conditions
Precedent............................................ 75
SECTION 8.17 Number of Trustees....................................... 75
SECTION 8.18 Delegation of Power...................................... 76
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Page
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ARTICLE IX
Termination, Liquidation and Merger
SECTION 9.1 Termination Upon Expiration Date;
Termination Upon Special Event....................... 77
SECTION 9.2 Early Termination........................................ 77
SECTION 9.3 Termination.............................................. 77
SECTION 9.4 Liquidation.............................................. 78
SECTION 9.5 Mergers, Consolidations, Amalgamations
or Replacements of the Trust......................... 80
ARTICLE X
Miscellaneous Provisions
SECTION 10.1 Limitation of Rights of Securityholders.................. 82
SECTION 10.2 Liability of the Depositor............................... 82
SECTION 10.3 Amendment................................................ 82
SECTION 10.4 Separability............................................. 84
SECTION 10.5 Governing Law............................................ 84
SECTION 10.6 Payments Due on Non-Business Day......................... 85
SECTION 10.7 Successors............................................... 85
SECTION 10.8 Headings................................................. 85
SECTION 10.9 Reports, Notices and Demands............................. 85
SECTION 10.10 Agreement Not to Petition................................ 86
SECTION 10.11 Trust Indenture Act; Conflict with
Trust Indenture Act.................................. 87
SECTION 10.12 Acceptance of Terms of Declaration of
Trust, Guarantee and Indenture....................... 87
Exhibit A - Certificate of Trust
Exhibit B - Form of Capital Security
Exhibit C - Certificate Evidencing Common Securities
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EXECUTION COPY
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of
November , 1997, among (i) NORTH FORK BANCORPORATION, INC., a
Delaware corporation (including any successors or assigns, the
"Depositor"), (ii) BANKERS TRUST COMPANY, a New York banking
corporation, as property trustee, (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and
not in its capacity as Property Trustee, the "Bank"), (iii)
BANKERS TRUST (Delaware), a Delaware banking corporation, as
Delaware trustee (the "Delaware Trustee"), (iv) DANIEL M.
HEALY, an individual, and JOHN N. DIGIACOMO, an individual,
each of whose address is c/o North Fork Bancorporation, Inc.
(each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees are referred to
collectively herein as the "Trustees") and (v) the several
Holders, as hereinafter defined.
W I T N E S S E T H :
WHEREAS the Depositor, the Delaware Trustee and the Administrative
Trustees have heretofore duly declared and established a business trust pursuant
to the Delaware Business Trust Act by entering into a certain Declaration of
Trust, dated as of November 14, 1997 (the "Original Declaration of Trust"), and
by the execution and filing by the Delaware Trustee and the Administrative
Trustees with the Secretary of State of the State of Delaware of the Certificate
of Trust, filed on November 14, 1997 (the "Certificate of Trust") and attached
as Exhibit A; and
WHEREAS the Depositor, the Delaware Trustee and the Administrative
Trustees desire to amend and restate the Original Declaration of Trust in its
entirety as set forth herein to provide for, among other things (i) the
<PAGE> 8
issuance and sale of the Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the ___% Capital Securities (the
"Capital Securities") by the Trust pursuant to the Underwriting Agreement,
(iii) the acquisition by the Trust from the Depositor of all of the right,
title and interest in the Junior Subordinated Debt Securities and (v) the
appointment of Bankers Trust Company, a New York banking corporation (in such
capacity, the "Property Trustee" and, in its separate corporate capacity and
not in its capacity as Property Trustee, the "Bank");
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of the other
parties and for the benefit of the Securityholders, hereby amends and restates
the Original Declaration of Trust in its entirety and agrees as follows:
ARTICLE I
Defined Terms
SECTION 1.1 Definitions. For all purposes of this Declaration of
Trust, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Declaration of Trust;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer
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<PAGE> 9
to this Declaration of Trust as a whole and not to any particular Article,
Section or other subdivision; and
(e) all references to the date the Capital Securities were
originally issued shall refer to the date the Capital Securities were
originally issued.
"Act" has the meaning specified in Section 6.08.
"Additional Distribution" has the meaning specified in Section
4.01(c).
"Administrative Trustee" means each of Daniel M. Healy and John N.
DiGiacomo, solely in such Person's capacity as Administrative Trustee of the
Trust continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial interest therein,
the rules and procedures of the Depositary for such Capital Security, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"Bank" has the meaning specified in the preamble to this Declaration
of Trust.
"Bankruptcy Event" means, with respect to any Person:
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<PAGE> 10
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law, or the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any substantial
part of its property or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due and its willingness to be
adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Board Resolution" means a copy of a resolution certified by the
Secretary of an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b)
a day on which banking institutions in The City of New York are authorized or
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<PAGE> 11
required by law or executive order to remain closed or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Capital Securities" means each of the Capital Securities to be
issued on the date hereof each representing an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $1,000 per Capital
Security and having the rights provided therefor in this Declaration of Trust,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as Exhibit
B.
"Capital Securityholder" means a Person in whose name a Capital
Security or Capital Securities is registered in the Securities Register; and any
such Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Certificate of Trust" has the meaning specified in the preamble to
this Declaration of Trust.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting
Agreement.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended,
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<PAGE> 12
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities" means the % Common Securities, each representing
an undivided beneficial interest in the assets of the Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in this
Declaration of Trust, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in New York City which at the time of the execution of this
Declaration of Trust is located at Four Albany Street, New York, New York 10006;
Attention of Corporate Trust and Agency Group--Corporate Market Services.
"Declaration of Trust" means this Amended and Restated Declaration
of Trust, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Amended and Restated Declaration of Trust, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Amended and Restated Declaration of Trust and any modification, amendment
or supplement of either, respectively.
"Debenture Event of Default" means an "Event of Default" as defined
in the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York banking
corporation and any successor.
"Definitive Capital Securities Certificate" means Capital Securities
Certificates issued in certificated, fully registered form.
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<PAGE> 13
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss.ss. 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Declaration of Trust solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall be 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):
(a) the occurrence of a Debenture Event of Default; or
(b) 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
(c) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of
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<PAGE> 14
the Trustees in this Declaration of Trust (other than a covenant or
warranty, a default in the performance or breach of which is addressed in
clause (b) or (c) 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 Trustee or 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" hereunder;
or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
"Expiration Date" has the meaning specified in Section 9.01.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Global Capital Securities" means a beneficial interest in the
Capital Securities, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Global Capital Securities Certificate" means a certificate
evidencing ownership of Global Capital Securities, substantially in the form
attached as Exhibit B.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and Bankers Trust Company, as trustee, contemporaneously with the
execution and delivery of this Declaration of Trust, for the benefit of the
holders of the Trust Securities, as amended from time to time.
"Holder" means a Person in whose name Trust Securities are
registered in the Securities Register; any such Person shall be deemed to be a
beneficial owner of such Trust Securities within the meaning of the Delaware
Business Trust Act; provided, however, that in determining whether the Holders
of the requisite amount
8
<PAGE> 15
of Capital Securities have voted on any matter provided for in this Declaration
of Trust, then for the purpose of any such determination, so long as Definitive
Capital Securities Certificates have not been issued, the term Securityholders
or Holders as used herein shall refer to the Owners.
"Indenture" means the Indenture, dated as of December 31, 1996,
between the Depositor and the Debenture Trustee, as trustee, (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debt Securities.
"Junior Subordinated Debt Securities" means the aggregate principal
amount of the Depositor's % Junior Subordinated Debt Securities due , issued
pursuant to the Indenture.
"Junior Subordinated Debt Securities Redemption Date" means, with
respect to any Junior Subordinated Debt Securities to be redeemed under the
Indenture, the date fixed for redemption under the Indenture.
"Letter of Representations" means the agreement among the Trust, the
Property Trustee and The Depository Trust Company ("DTC"), as the initial
Clearing Agency, dated as of the Closing Date.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) 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
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<PAGE> 16
contemporaneously redeemed in accordance with the Indenture allocated to the
Trust Securities based upon their relative Liquidation Amounts and the proceeds
of which will be used to pay the Redemption Price of such Trust Securities, and
(b) with respect to a distribution of Junior Subordinated Debt Securities to
Holders 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.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated Debt
Securities are to be distributed to Holders of Trust Securities in connection
with a termination and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section
9.04(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman
and Chief Executive Officer, President or a Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration of Trust shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
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<PAGE> 17
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and which opinion shall be reasonably acceptable to the
Property Trustee.
"Original Declaration of Trust" has the meaning specified in the
preamble to this Declaration of Trust.
"Outstanding", with respect to Capital Securities, means, as of the
date of determination, all Capital Securities theretofore executed and delivered
under this Declaration of Trust, except;
(a) Capital Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Capital Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the benefit of the Holders of such Capital Securities; provided
that if such Capital Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Declaration of Trust; and
(c) Capital Securities which have been paid or in exchange for or in
lieu of which other Capital Securities have been executed and delivered pursuant
to Sections 5.02, 5.04, 5.05, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or
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<PAGE> 18
waiver hereunder, Capital Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not to
be Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Capital Securities that a Responsible Officer of
such Trustee actually knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the outstanding Capital
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Capital Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to act with
respect to such Capital Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Global
Capital Security as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly), in accordance with the rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Bank.
"Payment Account" means a segregated noninterest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Junior Subordinated Debt Securities will be held and from which
the Property Trustee shall make payments to the Securityholders in accordance
with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
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<PAGE> 19
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Declaration of
Trust solely in its capacity as Property Trustee of the Trust continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Declaration
of Trust, provided, however, that each Junior Subordinated Debt Securities
Redemption Date and the Stated Maturity of the Junior Subordinated Debt
Securities shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Junior Subordinated Debt Securities, allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities.
"Registration Statement" has the meaning specified in the
Registration Agreement.
"Regulatory Capital Event" has the meaning specified in Section 1.01
of the Indenture.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" means, when used with respect to the Property
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president,
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<PAGE> 20
assistant treasurer, assistant secretary or any other officer to the Property
Trustee customarily performing functions similar to those performed by any of
the above designated officers and having direct responsibility for the
administration for this Declaration of Trust, and also, with respect to a
particular matter, any other officer, to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.05.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act; provided, however, that in determining whether the
Holders of the requisite amount of Capital Securities have voted on any matter
provided for in this Declaration of Trust, then for the purpose of any such
determination, so long as Definitive Capital Securities Certificates have not
been
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<PAGE> 21
issued, the term Securityholders or Holders as used herein shall refer to the
Owners.
"Special Event" means either a Tax Event or a Regulatory Capital
Event.
"Stated Maturity" has the meaning specified in Section 1.01 of the
Indenture.
"Tax Event" has the meaning specified in Section 1.01 of the
Indenture.
"Transfer Agent" means the Bank as set forth in the preamble to this
Declaration of Trust.
"Trust" means North Fork Capital Trust II.
"Trust Indenture Act" has the meaning specified in Section 1.01 of
the Indenture.
"Trust Property" means (a) the Junior Subordinated Debt Securities,
(b) the rights of the Property Trustee under the Guarantee, (c) any cash or
deposit in, or owing to, the Payment Account and (d) all proceeds and rights in
respect of the foregoing.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Capital Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriters" means Salomon Brothers Inc and Keefe, Bruyette
& Woods, Inc.
"Underwriting Agreement" means the Underwriting Agreement, dated as
of November , 1997, among the Trust, the Depositor and the Underwriters.
ARTICLE II
Continuation of the Trust
SECTION 2.1 Name. The Trust continued hereby shall be known as
"North Fork Capital Trust II", as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders and the
other Trustees, in which name the
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Trustees may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
SECTION 2.2 Office of the Delaware Trustee; Principal Place of
Business. The address of the Delaware Trustee in the State of Delaware is
Bankers Trust (Delaware), 1011 Centre Road, Suite 200, Wilmington, DE
19805-1266, Attention of Ms. Lisa Wilkins, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is in care of North Fork Bancorporation, Inc., 275 Broad Hollow Road, Melville,
NY 11747; Attention: Anthony Abate, Secretary.
SECTION 2.3 Organizational Expenses. The Depositor, as borrower on
the Junior Subordinated Debt Securities, shall pay all expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
SECTION 2.4 Issuance of the Capital Securities. The Capital
Securities to be issued will be limited to $100 million aggregate Liquidation
Amount outstanding at any one time.
On November , 1997, the Depositor and the Administrative Trustees, on
behalf of the Trust, and pursuant to the Original Declaration of Trust, and the
Underwriters executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Declaration of Trust,
an Administrative Trustee, on behalf of the Trust, shall execute or cause to be
executed in accordance with Section 5.02 and delivered to the Underwriters, a
Global Capital Securities Certificate in book-entry form, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of
Capital Securities having an aggregate Liquidation Amount of $100 million
against receipt of the aggregate purchase price of such Capital Securities
equal to of the Liquidation Amount multiplied by the number of Capital
Securities being purchased which amount the Administrative Trustee shall
promptly deliver to the Property Trustee.
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SECTION 2.5 Issuance of the Common Securities; Subscription and
Purchase of Junior Subordinated Debt Securities. Contemporaneously with the
execution and delivery of this Declaration of Trust, an Administrative Trustee,
on behalf of the Trust, shall execute or cause to be executed in accordance with
Section 5.02(a) and delivered to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of ______ Common
Securities having an aggregate Liquidation Amount of $_________ against payment
by the Depositor of $________ which amount the Administrative Trustees shall
promptly deliver to the Property Trustee. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Depositor Junior Subordinated Debt Securities, registered in the name
of the Trust and having an aggregate principal amount equal to $____________,
and, in satisfaction of the purchase price for such Junior Subordinated Debt
Securities, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $___________.
SECTION 2.6 Declaration of Trust. The exclusive purposes and
functions of the Trust are to (a) issue and sell Trust Securities, (b) use the
proceeds from the sale of Trust Securities to acquire the Junior Subordinated
Debt Securities, (c) receive payments to be made with respect to the Junior
Subordinated Debt Securities, and (d) engage in only those other activities
necessary, advisable or incidental thereto such as registering the transfer of
the Capital Securities and complying with the terms of the Registration
Agreement. The Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein, and
the Trustees hereby accept such appointment. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the
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Trust for the sole and limited purpose of fulfilling the requirements of Section
3807 of the Delaware Business Trust Act.
SECTION 2.7 Authorization to Enter into Certain Transactions. (a)
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Declaration of Trust. Subject to the limitations set forth in paragraph
(b) of this Section and in accordance with the following provisions (i) and
(ii), the Trustees shall have the authority to enter into all transactions and
agreements determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees under this
Declaration of Trust, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
(A) issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Underwriting Agreement, the
Letter of Representations and such other agreements as may be
necessary or desirable in connection with the purposes and function
of the Trust;
(C) assisting in the registration of the Capital Securities
under the Securities Act of 1933, as amended and under state
securities or blue sky laws, and the qualification of this
Declaration of Trust as a trust indenture under the Trust Indenture
Act;
(D) assisting in the listing, if any, of the Capital
Securities upon such securities exchange or exchanges as shall be
determined by the Depositor and the registration of the Capital
Securities under the Securities Exchange Act of 1934, as amended,
(the "Exchange Act"), and the preparation and filing
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of all periodic and other reports and other documents pursuant to
the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Junior
Subordinated Debt Securities to the Securityholders in accordance
with this Declaration of Trust;
(F) the appointment of a Paying Agent, Transfer Agent and
Securities Registrar in accordance with this Declaration of Trust;
(G) registering transfer of the Trust Securities in accordance
with this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone or together with
any or all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Declaration of Trust; and
(J) the taking of any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration of Trust
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholders).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to
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act on behalf of the Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debt Securities;
(C) the collection of interest, principal and any other
payments made in respect of the Junior Subordinated Debt Securities
in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Junior Subordinated Debt Securities;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Debt
Securities to the Securityholders in accordance with this
Declaration of Trust;
(G) the distribution of the Trust Property in accordance with
the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Declaration of Trust and protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any
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such action on any particular Securityholder); and
(J) except as otherwise provided in this Section 2.07(a)(ii),
the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in
Section 2.07(a)(i).
(b) So long as this Declaration of Trust remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transactions except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Declaration of
Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) intentionally
take any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) invest any proceeds received by the Trust from holding the Junior
Subordinated Debt Securities, but shall distribute all such proceeds to Holders
pursuant to the terms of this Declaration of Trust and of the Trust Securities,
(vii) acquire any assets other than the Trust Property, (viii) possess any power
or otherwise act in such a way as to vary the Trust Property, (ix) possess any
power or otherwise act in such a way as to vary the terms of the Trust
Securities in any way whatsoever (except to the extent expressly authorized in
this Declaration of Trust or by the terms of the Trust Securities), (x) issue
any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Trust Securities, or (xi) other than as
provided in this Declaration of Trust or by the terms of the Trust Securities,
(A) direct the time, method and place of exercising any trust or power conferred
upon the Debenture Trustee with respect to the Junior Subordinated Debt
Securities, (B) waive any past default that is waivable under the Indenture, (C)
exercise any right to rescind or annul any
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declaration that the principal of all Junior Subordinated Debt Securities shall
be due and payable, or (D) consent to any amendment, modification, or
termination of the Indenture or the Junior Subordinated Debt Securities where
such consent shall be required unless the Trust shall have received an Opinion
of Counsel to the effect that such amendment, modification or termination will
not cause more than an insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the Investment Company Act,
the Trust will not be classified as a grantor trust for United States federal
income tax purposes or the Junior Subordinated Debt Securities will not be
classified as indebtedness for such purposes. The Administrative Trustees shall
defend all claims and demands of all Persons at any time claiming any Lien on
any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Trust Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Declaration of Trust are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Trust Securities, including any
amendments thereto;
(ii) the determination of the states in which to take appropriate
action to qualify or register for sale all or part of the Trust Securities
and the determination of any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and the advice to the Trustees
of actions they must take on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such states;
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(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the NASDAQ National Market for
listing upon notice of issuance of any Trust Securities;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Trust Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Trust
Securities; and
(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not (i) be deemed to
be an "investment company" required to be registered under the Investment
Company Act of 1940, as amended, or (ii) fail to be classified as a grantor
trust for United States federal income tax purposes and so that the Junior
Subordinated Debt Securities will be treated as indebtedness of the Depositor
for United States federal income tax purposes. In this connection, the Depositor
and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Declaration
of Trust, that each of the Depositor and the Administrative Trustees determines
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the holders of the Trust Securities.
SECTION 2.8 Assets of Trust. The assets of the Trust shall consist
solely of the Trust Property.
SECTION 2.9 Title to Trust Property. Legal title to all Trust
Property shall be vested at all times
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in the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Securityholders in accordance with this Declaration of Trust.
ARTICLE III
Payment Account
SECTION 3.1 Payment Account. (a) On or prior to the Closing Date,
the Property Trustee shall establish the Payment Account. The Property Trustee
and any agent of the Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Declaration of Trust. All moneys and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein or by applicable law.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Junior Subordinated Debt
Securities. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
Distributions; Redemption
SECTION 4.1 Distributions. (a) Distributions on the Trust Securities
shall be cumulative and will accumulate whether or not there are funds of the
Trust available for the payment of Distributions. Distributions shall accrue
from November , 1997, and, except in the event (and to the extent) that the
Depositor exercises its right to defer the payment of interest on the Junior
Subordinated Debt Securities pursuant to the Indenture, shall be payable
semi-annually
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in arrears on __________ and __________ of each year, commencing on ___________,
1998. If any date on which a Distribution is otherwise payable is not a Business
Day, then the payment of such Distribution shall 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), in each case with the same force and effect as if made on
such date (each date on which distributions are payable in accordance with this
Section 4.01(a), a "Distribution Date"). Accrued Distributions that are not paid
on the applicable Distribution Date will bear interest on the amount thereof (to
the extent permitted by law) at the rate per annum of thereof, compounded
semi-annually from the relevant Distribution Date.
(b) The Trust Securities represent undivided beneficial ownership
interests in the Trust Property, and, assuming payments of interest on the
Junior Subordinated Debt Securities are made when due (and before giving effect
to Additional Distributions, defined below, if applicable), Distributions on the
Trust Securities shall be payable at a rate of per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions payable for any full
period shall be computed on the basis of a 360-day year of twelve 30- day
months. The amount of Distributions for any partial period shall be computed on
the basis of the number of days elapsed in a 360-day year of twelve 30-day
months. The amount of Distributions payable for any period shall include the
Additional Distributions, if any.
(c) So long as no Debenture Event of Default has occurred and is
continuing, the Depositor has the right under the Indenture to defer the payment
of interest on the Junior Subordinated Debt Securities at any time and from time
to time for a period not exceeding 10 consecutive semi-annual periods (an
"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 deferral, semi-annual Distributions on the Trust Securities by the
Trust will also be deferred (and the amount of Distributions to which Holders
are entitled will accumulate additional Distributions thereon at the rate of
per annum, compounded semi-annually) from the relevant payment date for such
Distributions, but not exceeding the interest rate then accruing on the Junior
Subordinated Debt Securities (such Distributions, described in this Section
4.01(c), are "Additional Distributions").
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(d) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on-hand and
available in the Payment Account for the payment of such Distributions.
(e) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders of record as they appear on
the Securities Register for the Trust Securities on each ______ and ______.
SECTION 4.2 Redemption. (a) On each Junior Subordinated Debt
Securities Redemption Date and on the Stated Maturity of the Junior Subordinated
Debt Securities, the Trust will be required to redeem a Like Amount of Trust
Securities at the applicable Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall identify the Trust Securities to be redeemed (including CUSIP
numbers) and shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price;
(iii) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(iv) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date.
The Trust in issuing the Trust Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall
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indicate the "CUSIP" numbers of the Trust Securities in notices or redemption
and related materials as a convenience to Securityholders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Trust Securities or as contained in any
notice of redemption and related material. The Depositor shall promptly notify
the Property Trustee of any change in such numbers.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the applicable Redemption Price with the proceeds from the
contemporaneous redemption of 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
then on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Trust Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee will, so long
as the Capital Securities are in book-entry-only form, irrevocably deposit with
the Clearing Agency for the Capital Securities funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the holders thereof.
With respect to Capital Securities held in certificated form, the Property
Trustee, subject to Section 4.02(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register 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 Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
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Securityholders to receive the applicable Redemption Price and any Distribution
payable on or prior to the Redemption Date, but without interest, and such
Capital Securities will cease to be outstanding. In the event that any date on
which any applicable Redemption Price is payable is not a Business Day, then
payment of the applicable Redemption Price 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), except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the applicable Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities 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.
(e) Payment of the applicable Redemption Price on, and any
distributions of Junior Subordinated Debt Securities to Holders of, the Trust
Securities shall be made to the Holders thereof as they appear on the Securities
Register on the relevant record date, and, with respect to Trust Securities held
in certificated form, upon surrender of such certificated Trust Securities to
the Paying Agent.
(f) Subject to Section 4.03(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Trust Securities. The
particular Trust Securities to be redeemed shall be selected on a pro rata basis
(based upon Liquidation Amounts) not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Trust Securities not
previously called for redemption, by such method as the Property Trustee shall
deem fair and appropriate and
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which may provide for the selection for redemption of portions (equal to $1,000
or an integral multiple of $1,000 in excess thereof) of the Liquidation Amount
of Trust Securities of a denomination larger than $1,000. The Property Trustee
shall promptly notify the Security Registrar in writing of the Trust Securities
selected for redemption and, in the case of any Trust Securities selected for
partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Declaration of Trust, unless the context otherwise requires,
all provisions relating to the redemption of Trust Securities shall relate in
the case of any Trust Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Trust Securities that has been or is to be
redeemed.
SECTION 4.3 Subordination of Common Securities. (a) Payment of
Distributions (including Additional Distributions, if applicable) on, and the
Redemption Price of the Trust Securities, as applicable, shall be made subject
to Section 4.02(f), pro rata to the holders of the 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 other Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Distributions,
if applicable) on, or 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 (including Additional Distributions, if
applicable) on all outstanding Capital Securities for all Distribution Dates
occurring on or prior thereto, or, in the case of payment of the applicable
Redemption Price the full amount of such Redemption Price on all outstanding
Capital Securities, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including Additional
Distributions, if applicable) on, or the Redemption Price of, Capital
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Declaration of Trust until the effect of all such Events of Default
with respect to the Capital
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Securities have been cured, waived or otherwise eliminated. Until all such
Events of Default under this Declaration of Trust with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not on behalf of the 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.
SECTION 4.4 Payment Procedures. In the event Definitive Capital
Securities Certificates are issued, payments of Distributions (including
Additional Distributions, if applicable) in respect of the Capital Securities
shall be made by check mailed to the address of the Person entitled thereto at
such address as shall appear on the Securities Register. If the Capital
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, which shall credit the
relevant Persons' accounts at such Clearing Agency on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
SECTION 4.5 Tax Returns and Reports. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and
filed) the appropriate Internal Revenue Service form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form required to be provided pursuant to
the form referenced in clause (a) hereof. The Administrative Trustees shall
provide the Depositor and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing. The Administrative
Trustees shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Securityholders.
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SECTION 4.6 Payment of Taxes; Duties, etc. of the Trust. Pursuant to
Section 10.06 of the Indenture, the Depositor, as borrower on the Junior
Subordinated Debt Securities, has agreed to, and it shall, promptly pay any
taxes, duties or governmental charges of whatever nature (other than United
States withholding taxes) imposed on the Trust by the United States or any other
taxing authority.
SECTION 4.7 Payments Under Indenture. Any amount payable hereunder
to any Holder (and any Owner with respect thereto) shall be reduced by the
amount of any corresponding payment such Holder (and Owner) has directly
received pursuant to Section 5.08 of the Indenture.
ARTICLE V
Trust Securities Certificates
SECTION 5.1 Initial Ownership. Upon the formation of the Trust and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 5.2 Trust Securities Certificates. (a) The Capital
Securities Certificates and the Common Securities Certificates shall be issued
in denominations of $1,000 Liquidation Amount and integral multiples thereof.
The Trust Securities Certificates shall be executed on behalf of the Trust by
the manual or facsimile signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits of this Declaration of Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and
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subject to the obligations of a Securityholder hereunder, upon due registration
of such Trust Securities Certificate in such transferee's name pursuant to
Sections 5.04, 5.05 and 5.06.
(b) Except as set forth herein, record ownership of the Global
Capital Security may be transferred, in whole or in part, only to another
nominee of DTC or to a successor of DTC or its nominee.
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3 Execution and Delivery of Trust Securities Certificates.
At the Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust and delivered to the Property
Trustee and upon such delivery the Property Trustee shall countersign such Trust
Securities Certificates and deliver such Trust Securities Certificates upon the
written order of the Depositor, signed by its chairman of the board and
president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4 Global Capital Security. (a) The Global Capital Security
issued under this Declaration of Trust shall be registered in the name of Cede
as nominee of the Clearing Agency and delivered to its custodian therefor, and
such Global Capital Security shall constitute a single Capital Security for all
purposes of this Declaration of Trust.
(b) Notwithstanding any other provision in this Declaration of
Trust, the Global Capital Security may not be exchanged in whole or in part for
Capital Securities registered, and no transfer of the Global Capital Security in
whole or in part may be registered, in the name of any Person other than the
Clearing Agency for such Global Capital Security, Cede, or other nominee thereof
unless (i) such Clearing Agency advises the Property Trustee in writing that
such Clearing Agency is
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no longer willing or able to properly discharge its responsibilities as Clearing
Agency with respect to such Global Capital Security, and the Depositor is unable
to locate a qualified successor, (ii) the Trust at its option advises DTC in
writing that it elects to terminate the book-entry system through the Clearing
Agency, 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 Capital Securities upon
request by DTC, but only upon at least 20 days prior written notice given to the
Property Trustee in accordance with the Applicable Procedures.
(c) If the Global Capital Security is to be cancelled in whole, it
shall be surrendered by or on behalf of the Clearing Agency or its nominee to
the Securities Registrar for exchange or cancellation as provided in this
Article V. If the Global Capital Security is to be cancelled in part, or if
another Capital Security is to be exchanged in whole or in part for a
beneficial interest in the Global Capital Security, then either (i) such
Global Capital Security shall be so surrendered for exchange or cancellation as
provided in this Article V or (ii) the liquidation amount thereof shall be
reduced, subject to Section 5.02, or increased by an amount equal to the portion
thereof to be so exchanged or cancelled, or equal to the liquidation amount of
such other Capital Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Security Registrar, whereupon the Property Trustee, in accordance
with the Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of the Global Capital Security by the
Clearing Agency and Clearing Agency Participants, accompanied by registration
instructions executed by an Administrative Trustee on behalf of the Trust, the
Property Trustee shall, subject to this Article V, countersign and deliver any
executed Capital Securities delivered to it issuable in exchange for such Global
Capital Security (or any portion thereof) in accordance with the instructions of
the Clearing Agency. The Property Trustee shall not be liable for any delay in
delivery of such instructions and
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may conclusively rely on, and shall be fully protected in relying on, such
instructions.
(d) The Clearing Agency or its nominee, as the registered owner of
the Global Capital Security, shall be considered the Holder of the Capital
Securities represented by the Global Capital Security for all purposes under
this Declaration of Trust and the Capital Securities, and owners of beneficial
interests in the Global Capital Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided herein, shall not be
entitled to have any of the individual Capital Securities represented by the
Global Capital Security registered in their names, shall not receive nor be
entitled to receive physical delivery of any such Capital Securities in
definitive form and shall not be considered the Holders thereof under this
Declaration of Trust. Accordingly, any such owner's beneficial interest in the
Global Capital Security shall he shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Clearing
Agency or its nominee. The Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this Declaration
of Trust relating to the Global Capital Securities (including the payment of the
Liquidation Amount of and Distributions on the Global Capital Securities and the
giving of instructions or directions to Owners of Global Capital Securities) as
the sole Holder of Global Capital Securities and shall have no obligations to
the Owners thereof. Neither the Property Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by the Clearing
Agency.
(e) The rights of owners of beneficial interests in the Global
Capital Security shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such owners and
the Clearing Agency.
SECTION 5.5 Registration of Transfer and Exchange Generally; Certain
Transfers and Exchanges; Capital Securities Certificates; Securities Act
Legends. (a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of registering
Capital Securities
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Certificates and Common Securities Certificates and transfers and exchanges of
Capital Securities Certificates and Common Securities Certificates in which the
registrar and transfer agent with respect to the Capital Securities (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Capital Securities Certificates
and Common Securities Certificates (subject to Section 5.11 in the case of
Common Securities Certificates) and registration of transfers and exchanges of
Capital Securities Certificates and Common Securities Certificates as herein
provided. Such register is herein sometimes referred to as the "Securities
Register." The Property Trustee is hereby appointed "Securities Registrar" for
the purpose of registering Capital Securities and transfers of Capital
Securities as herein provided. The provisions of Sections 8.01, 8.03 and 8.06
hereunder shall apply to the Property Trustee also in its role as Securities
Registrar.
Upon surrender for registration of transfer of any Capital Security
at the offices or agencies of the Property Trustee designated for that purpose,
the Administrative Trustees shall execute, and the Property Trustee shall
countersign and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities of any authorized denominations
of like tenor and aggregate liquidation amount and bearing such restrictive
legends as may be required by this Declaration of Trust.
At the option of the Holder, Capital Securities may be exchanged for
other Capital Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such restrictive legends as may be
required by this Declaration of Trust, upon surrender of the Capital Securities
to be exchanged at such office or agency. Whenever any securities are so
surrendered for exchange, the Depositor shall execute and the Property Trustee
shall countersign and deliver the Capital Securities that the Holder making the
exchange is entitled to receive.
All Capital Securities issued upon any transfer or exchange of
Capital Securities shall be the valid obligations of the Trust, entitled to the
same benefits
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under this Declaration of Trust as the Capital Securities surrendered upon such
transfer or exchange.
Every Capital Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Capital Securities, but the Property Trustee or the Securities
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Capital Securities.
Neither the Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register the transfer
of or exchange any Capital Security during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Capital
Securities pursuant to Article IV and ending at the close of business on the day
of such mailing of the notice of redemption, or (ii) to register the transfer of
or exchange any Capital Security so selected for redemption in whole or in part,
except, in the case of any such Capital Security to be redeemed in part, any
portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Subject to Section 5.04(c), but
notwithstanding any other provision of this Declaration of Trust, transfers and
exchanges of Capital Securities and beneficial interests in a Global Capital
Security shall be made only in accordance with this Section 5.05(b) and Section
5.04(c).
(i) Non-Global Capital Security to Global Security. If the Holder of
a Restricted Capital Security (other than the Global Security) wishes at
any time to transfer all or any portion of such Capital Security to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Global Security, such transfer may be effected only in
accordance with the provisions
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of this Clause (b)(i) and subject to the Applicable Procedures. Upon
receipt by the Securities Registrar of (A) such Capital Security as
provided in Section 5.05(a) and instructions satisfactory to the
Securities Registrar directing that a beneficial interest in the Global
Security in a specified liquidation amount not greater than the
liquidation amount of such Capital Security to be credited to a specified
Clearing Agency Participant's account and (B) a Capital Securities
Certificate duly executed by such Holder or such Holder's attorney duly
authorized in writing, then the Securities Registrar shall cancel such
Capital Security (and issue a new Capital Security in respect of any
untransferred portion thereof) as provided in Section 5.01(a) and increase
the aggregate liquidation amount of the Global Capital Security by the
specified liquidation amount as provided in Section 5.04(c).
(ii) Non-Global Security to Non-Global Security. A Capital Security
that is not a Global Capital Security may be transferred, in whole or in
part, to a Person who takes delivery in the form of another Capital
Security that is not a Global Security as provided in Section 5.05(a).
(iii) Exchanges Between Global Capital Security and Non-Global
Capital Security. A beneficial interest in the Global Capital Security may
be exchanged for a Capital Security that is not a Global Capital Security
as provided in Section 5.04.
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SECTION 5.6 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. Provided Definitive Capital Securities Certificates are issued, if
(a) any mutilated Trust Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided
beneficial interest in the assets of the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.
SECTION 5.7 Persons Deemed Securityholders. The Trustees or the
Securities Registrar shall treat the Person in whose name any Trust Securities
are issued as the owner of such Trust Securities for the purpose of receiving
distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.8 Access to List of Securityholders' Names and Addresses.
Each Owner of Trust Securities acknowledges that the Depositor, the Property
Trustee, the Delaware Trustee or the Administrative Trustees may
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from time to time make reasonable use of information consisting of such Owner's
name and address, including the furnishing of a list of such names and addresses
as contemplated hereunder, and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.9 Maintenance of Office or Agency; Transfer Agent. The
Administrative Trustees shall maintain an office or offices or agency or
agencies where Definitive Capital Securities Certificates, if issued, may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities may be
served. The Administrative Trustees initially designate Bankers Trust Company,
Four Albany Street, New York, NY 10006, Attention: Corporate Trust and Agency
Group Corporate Market Services, as its corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency. The Bank shall act as initial
transfer agent for the Trust Securities.
SECTION 5.10 Appointment of Paying Agent. The Paying Agent shall
make Distributions to Securityholders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions referred to
above. The Administrative Trustees may revoke such power and remove any Paying
Agent if such Administrative Trustees determine in their sole discretion that
such Paying Agent shall have failed to perform its obligations under this
Declaration of Trust in any material respect. The Paying Agent shall initially
be the Bank, and any co-paying agent chosen by the Bank, and acceptable to the
Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Depositor. In the event
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that the Bank shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Administrative Trustees
shall appoint a successor that is acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.01, 8.03 and 8.06 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Declaration of Trust to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
SECTION 5.11 Ownership of Common Securities by Depositor. The
Depositor shall acquire and retain beneficial and record ownership of the Common
Securities. To the fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger of the Depositor into another
corporation, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 8.01 of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.12 Notices to Clearing Agency. To the extent that a notice
or other communication to the Owners is required under this Declaration of
Trust, for so long as Capital Securities are represented by a Global Securities
Certificate, the Trustees shall give all such
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notices and communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to give duplicates thereof to the
Owners.
SECTION 5.13 Rights of Securityholders. (a) The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than the undivided beneficial ownership
interest in the assets of the Trust conferred by their Trust Securities and they
shall have no right to call for any partition or division of property, profits
or rights of the Trust except as described below. The Trust Securities shall be
personal property giving only the rights specifically set forth therein and in
this Declaration of Trust. The Trust Securities shall have no preemptive or
singular rights and when issued and delivered to Securityholders against payment
of the purchase price therefor will be fully paid and nonassessable. The
Holders, in their capacities as such, shall 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.
(b) For so long as any Capital Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders of
not less than 25% in liquidation amount of the outstanding Junior Subordinated
Debt Securities fail to declare the principal amount of all of the Junior
Subordinated Debt Securities to be immediately due and payable, the Holders of
at least 25% in Liquidation Amount of the Capital Securities then Outstanding
shall have such right by a notice in writing to the Depositor and the Debenture
Trustee with a copy to the Property Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Junior Subordinated
Debt Securities shall become immediately due and payable; provided that the
payment of principal and interest on such Junior Subordinated Debt Securities
shall remain subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to
the Junior Subordinated Debt
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Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, the Holders of a majority in Liquidation Amount of the Capital
Securities, by written notice to the Property Trustee, the Depositor and the
Debenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Depositor has paid or deposited with the Debenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Junior Subordinated Debt Securities,
(B) the principal of (and premium, if any, on) any Junior
Subordinated Debt Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
borne by the Junior Subordinated Debt Securities, and
(C) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the Property
Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Junior Subordinated
Debt Securities, other than the non-payment of the principal of the Junior
Subordinated Debt Securities which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13 of the
Indenture.
If the Property Trustee fails to annul any such declaration and
waive such default, the Holders of Capital Securities representing a majority in
aggregate Liquidation Amount of all the Outstanding Capital Securities shall
also have the right to rescind and annul such declaration and its consequences
by written notice to the Depositor, the Property Trustee and the Debenture
Trustee, subject to the satisfaction of the conditions set forth in Clause (i)
and (ii) of this Section 5.13(b).
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The Holders of a majority in aggregate Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default under the Indenture, except a default in the payment of
principal 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 Junior Subordinated Debt
Securities. No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of the
Capital Securities all or part of which is represented by Global Capital
Securities, a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided that, unless such
acclamation of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90 day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by
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law and subject to the terms of this Declaration of Trust and the Indenture,
upon a Debenture Event of Default specified in Section 5.01(1) or 5.01(2) of the
Indenture, any Holder of Capital Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Section 5.08 of the
Indenture, for enforcement of payment to such Holder of the principal amount of
or interest on Junior Subordinated Debt Securities having a principal amount
equal to the Liquidation Amount of the Capital Securities of such Holder (a
"Direct Action"). Except as set forth in Sections 5.13(b) and 5.13(c), the
Holders of Capital Securities shall have no right to exercise directly any right
or remedy available to the holders or, or in respect of, the Junior Subordinated
Debt Securities.
(d) A Securityholder may institute a legal proceeding directly
against the Guarantor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust or any
person or entity.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
SECTION 6.1 Limitations on Capital Securityholder's Voting Rights.
(a) Except as provided in this Declaration of Trust and in the Indenture and as
otherwise required by law, no Holder of Capital Securities shall have any right
to vote or in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Capital Securityholders from
time to time as partners or members of an association. Unless a Debenture Event
of Default shall have occurred and be continuing, any Trustee may be removed at
any time by the vote of the Common Securityholder. The right to vote to appoint,
remove or replace the Administrative Trustees is vested exclusively in the
Depositor as the Holder of the Common Securities.
(b) So long as any Junior Subordinated Debt Securities are held by
the Property Trustee, the Trustees
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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 such Junior Subordinated Debt
Securities, (ii) waive any past default which 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 at least 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 written consent of each Holder of Capital Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of Capital Securities, except by a subsequent vote of the Holders of
Capital Securities. The Property Trustee shall notify all Holders of the Capital
Securities of any notice of default received from the Debenture Trustee with
respect to the Junior Subordinated Debt Securities. In addition to obtaining the
foregoing approvals of the Holders of the Capital Securities, prior to taking
any of the foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust will not fail to be classified as a grantor trust for
United States federal income tax purposes on account of such action.
(c) If any proposed amendment to the Declaration of Trust provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences or
special rights of the Trust Securities, whether by way of amendment to the
Declaration of Trust or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Declaration
of Trust, then the Holders of Outstanding Trust Securities
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as a class will be entitled to vote on such amendment or proposal.
SECTION 6.2 Notice of Meetings. Notice of all meetings of the
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 10.09 to each Securityholder
of record, at his registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
SECTION 6.3 Meetings of Securityholders. No annual meeting of
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Securityholders of record of 25% of the Securities (based upon
their Liquidation Amount) and the Administrative Trustees or the Property
Trustee may, at any time in their discretion, call a meeting of Securityholders
to vote on any matters as to which Securityholders are entitled to vote.
Securityholders of record of 50% of the Outstanding Securities
(based upon their Liquidation Amount), present in person or represented by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Securityholders of record present, in person or by proxy, holding more than a
majority of the Securities (based upon their Liquidation Amount) held by the
Securityholders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Securityholders, unless this Declaration of
Trust requires a greater number of affirmative votes.
SECTION 6.4 Voting Rights. Securityholders shall be entitled to one
vote for each $1,000 of Liquidation Amount represented by their Outstanding
Trust Securities in respect of any matter as to which such Securityholders are
entitled to vote.
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SECTION 6.5 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy; provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several persons, any one of them may vote at any meeting in
person or by proxy in respect of such Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such joint owners or
their proxies so present disagree as to any vote to be cast, such vote shall not
be received in respect of such Securities. A proxy purporting to be executed by
or on behalf of a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6 Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by any
express provision of this Declaration of Trust) shall consent to the action in
writing.
SECTION 6.7 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
in respect of which a record date is not otherwise provided for in this
Declaration of Trust, or for the purpose of any other action, the Administrative
Trustees may from time to time fix a date, not more than 90 days prior to the
date of any meeting of Securityholders or the payment of a distribution or other
action, as the case may be, as a record date for the
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determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration of Trust to be given, made or taken by
Securityholders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders or
Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Declaration of Trust and (subject to Section 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be provided by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Registrar.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind every
future Securityholder of the same Trust Security and the
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Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may do
so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such Liquidation
Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to enforce its rights under the
Guarantee Agreement without first instituting a legal proceeding against the
Guarantee Trustee (as defined in the Guarantee Agreement), the Trust, any
Trustee or any person or entity.
SECTION 6.9 Inspection of Records. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
Representations and Warranties
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SECTION 7.1 Representations and Warranties of the Property Trustee
and the Delaware Trustee. The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of
New York, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of this Declaration.
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee; and the Declaration has been
duly executed and delivered by the Property Trustee, and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
(d) At the Closing Date, the Property Trustee has not knowingly
created any liens or encumbrances on such Trust Securities.
(e) No consent, approval or authorization of, or registration with
or notice to, any New York State or federal banking authority is required
for the execution, delivery or performance by the Property Trustee, of the
Declaration.
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(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration.
(g) The execution, delivery and performance by the Delaware Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee; and the Declaration has been
duly executed and delivered by the Delaware Trustee, and constitutes a
legal, valid and binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' right generally and to general principles of equity and the
discretion of the court regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance or the Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with
or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this
Declaration.
(j) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
SECTION 7.2 Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Securityholders
that the Trust Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this
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Declaration of Trust, and the Securityholders will be, as of each such date,
entitled to the benefits of this Declaration of Trust.
ARTICLE VIII
The Trustees
SECTION 8.1 Certain Duties and Responsibilities. (a) The duties and
responsibilities of the Trustees shall be as provided by this Declaration of
Trust and, in the case of the Property Trustee, by the Trust Indenture Act;
provided, however, that the Property Trustee shall not be subject to the
provisions of the Trust Indenture Act until such time as this Declaration of
Trust becomes qualified under the Trust Indenture Act upon the effectiveness of
a registration statement. Notwithstanding the foregoing, no provisions of this
Declaration of Trust shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers, if
they shall have reasonable grounds for believing that repayment of such funds or
indemnity satisfactory to it against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of
this Declaration of Trust relating to the conduct or affecting the liability of
or affording protection to the Trustees shall be subject to the provisions of
this Article. Nothing in this Declaration of Trust shall be construed to release
an Administrative Trustee from liability for his own grossly negligent action,
his own grossly negligent failure to act, or his own wilful misconduct. To the
extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
the Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Declaration of Trust. The provisions of this Declaration of
Trust, to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees.
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(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Declaration of Trust or, in the case of the Property Trustee,
in the Trust Indenture Act, if applicable.
(c) No provision of this Declaration of Trust shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in Liquidation
Amount of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Junior Subordinated Debt
Securities and the Payment Account shall be to deal with such Property in
a similar manner as the
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Property Trustee deals with similar property for its own account, subject
to the projections and limitations on liability afforded to the Property
Trustee under this Declaration of Trust and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.01 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Declaration of Trust nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
SECTION 8.2 Events of Default Notices; Deferral of Interest Payment
Notices. Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived. The 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.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Junior
Subordinated Debt Securities pursuant to the Indenture, the Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
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SECTION 8.3 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration of Trust
the Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Declaration of
Trust the Property Trustee finds the same ambiguous or inconsistent with
any other provisions contained herein (iii) the Property Trustee is unsure
of the application of any Provision of this Declaration of Trust, then,
except as to any matter as to which the Securityholders are entitled to
vote under the terms of this Declaration of Trust, the Property Trustee
shall deliver a notice to the Depositor requesting written instructions of
the Depositor as to the course of action to be taken and the Property
Trustee shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that if the Property
Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall
be under no duty to, take or refrain from taking such action not
inconsistent with this Declaration of Trust as it shall deem advisable and
in the best interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith, negligence
or wilful misconduct;
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(c) any direction or act of the Depositor or the Administrative
Trustee contemplated by this Declaration of Trust shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration of Trust, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Depositor or the Administrative
Trustees; (which Officers' Certificate will be evidence only for purposes
of determining entitlement to indemnification of the Property Trustee from
the Depositor but not with respect to any liability to Securityholders).
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees) and the advice of such counsel shall
be full and complete authorization and protection in respect of any action
taken suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice, such counsel may be counsel to
the Depositor or any of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration of Trust
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration of Trust at
the request or direction of any of the Securityholders
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pursuant to this Declaration of Trust, unless such Securityholders shall
have offered to the Property Trustee security or indemnity satisfactory to
it against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Securityholders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(i) the Property Trustee may execute any of its trusts or powers
hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of or for the
supervision of any such agent or attorney appointed by it with due care
hereunder;
(j) whenever in the administration of this Declaration of Trust the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be fully
protected in acting in accordance with instructions;
(k) except as otherwise expressly provided by this Declaration of
Trust, the Property Trustee
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shall not be under any obligation to take any action that is discretionary
under the provisions of this Declaration of Trust;
(l) when the Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law
or law relating to creditors rights generally; and
(m) the Property Trustee shall not be charged with knowledge or an
Event of Default unless a Responsible Officer of the Property Trustee
obtains actual knowledge of such event or the Property Trustee receives
written notice of such event from Securityholders holding at least 25%, of
the Outstanding Trust Securities (based upon Liquidation Amount).
No provision of this Declaration of Trust shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.4 Not Responsible for Recitals. The recitals contained
herein and in the Trust Securities Certificates shall be taken as the statements
of Trust, and the Trustees do not assume any responsibility for their
correctness. The Trustees shall not be accountable for the use or application by
the Depositor of the proceeds of the Junior Subordinated Debt Securities.
SECTION 8.5 May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.08
and 8.13, may otherwise deal
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with the Trust with the same rights it would if it were not a Trustee or such
other agent.
SECTION 8.6 Compensation, Indemnity, Fees. Pursuant to Section 10.06
of the Indenture, the Depositor, as borrower on the Junior Subordinated Debt
Securities, agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Declaration of Trust (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or wilful misconduct;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or
agent of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to
be within the scope of authority conferred on such Indemnified Person by
this Declaration of Trust, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence or wilful
misconduct with respect to such acts or omissions; and
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(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to
time, prior to the final disposition of such claim, demand action, suit or
proceeding upon receipt by the Depositor of (i) a written affirmation by
or on behalf of the Indemnified Person of its or his good faith belief
that it or he has met the standard of conduct set forth in this Section
8.06 and (ii) an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is
not entitled to be indemnified as authorized in the preceding subsection.
The provisions of this Section 8.06 shall survive the termination of
this Declaration of Trust or the earlier resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.06.
The Depositor and any Trustee (in the case of the Property Trustee,
subject to Section 8.08 hereof) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and none of the Trust, the
Holders, the Depositor or any such Trustee shall have any rights by virtue of
this Declaration of Trust in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Depositor, nor any Trustee, shall be obligated to present
any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and the Depositor or any Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the Depositor
or any Affiliate of the Depositor, or may act as depository for, trustee or
agent for, or act on any
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committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
SECTION 8.7 Corporate Property Trustee Required; Eligibility of
Trustees. (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least $50
million. If any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article; provided, however, that the Property Trustee need not qualify under the
Trust Indenture Act until such time as this Declaration of Trust is qualified
under the Trust Indenture Act.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.8 Conflicting Interests. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by,
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and subject to the provisions of, the Trust Indenture Act and this Declaration
of Trust.
SECTION 8.9 Co-Trustees and Separate 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 Property may at the time be located,
the Depositor and the Administrative Trustees, by agreed action of the majority
of such Trustees, shall have power to appoint, and upon the written request of
the Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law 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 the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor.
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Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act
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or omission of the Property Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be required to supervise any
co-trustee or separate trustee nor shall it be liable by reason of any act of a
co-trustee or separate trustee or any employees or agents of a co-trustee or
separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10 Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, a Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Outstanding Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Trust). An Administrative
Trustee may be removed by Act of the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause,
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at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Capital Securityholders, by
Act of the Capital Securityholders of a majority in Liquidation Amount of the
Capital Securities then Outstanding delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and such
successor Trustee shall comply with the applicable requirements of Section 8.11.
If an Administrative Trustee shall resign, be removed or become incapable of
acting as Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to the Administrative Trustee, shall promptly
appoint a successor Administrative Trustee or Administrative Trustees and such
successor Administrative Trustee or Trustees shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Common Securityholder or the Capital Securityholders and
accepted appointment in the manner required by Section 8.11, any Securityholder
who has been a Securityholder of Trust Securities for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.08 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration of Trust, in the event any Administrative Trustee or a Delaware
Trustee who is a
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natural person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of remaining Administrative Trustees if there
are at least two of them or (b) otherwise by the Depositor (with the successor
in each case being a Person who satisfies the eligibility requirement for
Administrative Trustees or Delaware Trustee, as the case may be, set forth in
Section 8.07).
SECTION 8.11 Acceptance of Appointment by Successor. In the case of
the appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee any instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with the rights, powers, trusts and duties of the retiring Trustee, but,
on the request of the Depositor or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee the
Property Trustee shall duly assign, transfer and deliver to the successor
Property Trustee all Trust Property and money held by such retiring Property
Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Declaration of Trust as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees if the same trust and that each such Relevant
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Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Relevant Trustee;
and upon the execution and delivery of such amendment the resignation or removal
of the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.12 Merger, Conversion, Consolidation or Succession to
Business. 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 with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Relevant Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13 Preferential Collection of Claims Against Depositor or
Trust. In case of the pendency of
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any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Trust or any other obligor upon the Trust Securities or the
property of the Trust or of such other obligor or their creditors, the Property
Trustee (irrespective of whether any Distributions on the Trust Securities shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Property Trustee shall have made any demand on the
Trust for the payment of any past due Distributions) shall be entitled and
empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute to same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to
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vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.14 Reports by Property Trustee. Upon qualification of this
Declaration of Trust under the Trust Indenture Act,
(a) Not later than the last calendar day in February of each year
commencing with the last calendar day in February of 1999, the Property Trustee
shall transmit to all Securityholders in accordance with Section 10.09, and to
the Depositor, a brief report dated as of the prior December 31 with respect to:
(i) its eligibility under Section 8.07 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects
the Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Declaration of Trust as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the NASDAQ National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Depositor.
SECTION 8.15 Reports to the Property Trustee. Upon qualification of
this Indenture under the Trust Indenture Act, the Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if
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any) and the compliance certificate required by Section 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 8.16 Evidence of Compliance with Conditions Precedent. Upon
qualification of this Indenture under the Trust Indenture Act, each of the
Depositor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration of Trust that relate to any
of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
SECTION 8.17 Number of Trustees. (a) The number of Trustees shall be
four; provided that the Holder of all of the Common Securities by written
instrument may increase or decrease the number of Administrative Trustees. The
Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filed with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustee
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
Provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration of Trust.
SECTION 8.18 Delegation of Power. (a) Any Administrative Trustee
may, by power of attorney
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consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.07(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) The Administrative Trustee shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Declaration of Trust, as
set forth herein.
ARTICLE IX
Termination, Liquidation and Merger
SECTION 9.1 Termination Upon Expiration Date; Termination Upon
Special Event. Unless earlier terminated, the Trust shall automatically
terminate on December 31, 2037 (the "Expiration Date"), following the
distribution of the Trust Property in accordance with Section 9.04.
SECTION 9.2 Early Termination. The first to occur of any of the
following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor or the Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the
Depositor, as borrower with respect to the Junior Subordinated Debt Securities,
at any time (which direction is optional and wholly within the discretion of the
Depositor subject to receipt of prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal Reserve
(including upon the occurrence and continuation of a Special Event in respect of
the Trust)) to terminate
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the Trust and, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, distribute a Like Amount of the Junior Subordinated
Debt Securities to Securityholders;
(c) the redemption of all of the Trust Securities in connection with
the redemption of all the Junior Subordinated Debt Securities (including upon
the occurrence and continuation of a Special Event pursuant to Section 11.07(b)
of the Indenture); and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3 Termination. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the payment of
any expenses owed by the Trust, (b) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or
upon the redemption of all of the Trust Securities pursuant to Section 4.02, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities, and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.4 Liquidation. (a) If an Early Termination Event specified
in clause (a), (b) or (d) of Section 9.02 occurs or upon the Expiration Date,
the Trust shall be liquidated by the Trustees as expeditiously as the Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, to each Securityholder a
Like Amount of Junior Subordinated Debt Securities, subject to Section 9.04(d).
Notice of liquidation shall be given by the Property Trustee by first-class
mail, postage prepaid, mailed not later than 30 nor more than 90 days prior to
the Liquidation Date to each Holder at such Holder's address appearing in the
Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date (which in the case of any liquidation
following the occurrence of
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a Special Event shall not be more than 90 days following such occurrence);
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Junior
Subordinated Debt Securities, or if Section 9.04(d) applies receive a
Liquidation Distribution, as the Administrative Trustees or the Property
Trustee shall deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order to
effect the liquidation of the Trust and distribution of the Junior Subordinated
Debt Securities to Securityholders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 45 days prior to
the Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Junior Subordinated Debt
Securities in exchange for the Outstanding Trust Securities Certificate.
(c) Except where Section 9.02(c) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Junior Subordinated
Debt Securities will be issued to Holders, upon surrender of such certificates
to the Administrative Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities accruing interest
at the rate provided for in the Junior Subordinated Debt Securities from the
last Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (or until such
certificates are so surrendered, no payments of interest or principal will be
made to the
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Holders of Trust Securities Certificates with respect to such Junior
Subordinated Debt Securities) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Junior Subordinated Debt Securities upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Junior Subordinated
Debt Securities in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and the
Trust shall be dissolved, wound-up or terminated, by the Property Trustee in
such manner as the Property Trustee determines. In such event, on the date of
the dissolution, winding-up or other termination of the Trust, Securityholders
will be entitled to receive out of the assets of the Trust available for
distribution to Securityholders after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, an amount equal to the aggregate of
Liquidation Amount plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). Holders of the Common
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as aforesaid) with
Holders of 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, and no payments shall be made with respect to the Common
Securities until Holders of Capital Securities have been paid in full. Any such
determination and liquidation by the Property Trustee shall be conclusive upon
the Securityholders and the Property Trustee shall have no liability in
connection therewith.
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SECTION 9.5 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 pursuant
to this Section 9.05. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Capital
Securities, the Property Trustee or the Delaware Trustee, the Trust may 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 Trust Securities or (b) substitutes for the Trust
Securities other securities having substantially the same terms as the Trust
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Trust Securities rank in priority with respect to distributions
and payments upon liquidation, redemption and otherwise, (ii) the Depositor
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 (if Capital 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 Trust Securities (including any Successor Securities) or, if so rated,
the Junior Subordinated Debt 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 Trust
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 Depositor has received an Opinion of Counsel to the effect that
(a) such merger,
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consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Trust 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 1940 Act and (viii)
the Depositor 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.
ARTICLE X
Miscellaneous Provisions
SECTION 10.1 Limitation of Rights of Securityholders. The death or
incapacity of any person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Declaration of Trust, nor entitle
the legal representatives or heirs of such person or any Securityholder for such
person, to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION 10.2 Liability of the Depositor. The Depositor, as borrower
with respect to the Junior Subordinated Debt Securities, shall be liable for all
the
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debts and obligations of the Trust (other than with respect to payments of
principal, interest, or premium, if any, on the Trust Securities) to the extent
not satisfied out of the Trust's assets.
SECTION 10.3 Amendment. (a) This Declaration of Trust may be amended
from time to time by the Property Trustee, the Administrative Trustees and the
Depositor, without the consent of any Securityholders (i) to cure any ambiguity,
correct or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Declaration of Trust, which shall not be
inconsistent with the other provisions of this Declaration of Trust; or (ii) to
modify, eliminate or add to any provisions of this Declaration of Trust 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 Outstanding or to ensure that the Trust will not be
required to register as an investment company under the 1940 Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of any Securityholder, and any amendments
of this Declaration of Trust shall become effective when notice thereof is given
to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any provision of
this Declaration of Trust may be amended by the Trustees and the Depositor with
(i) the consent of Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the 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
of an investment company under the 1940 Act.
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(c) In addition to and notwithstanding any other provision in this
Declaration of Trust, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.08 hereof), this
Declaration of Trust 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 Securityholder
to institute suit for the enforcement of any such payment on or after such date.
Notwithstanding any other provision herein, without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section 6.03 or
6.08 hereof), this paragraph (c) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Declaration of
Trust, no Trustee shall enter into or consent to any amendment to this
Declaration of Trust which would cause the Trust to fail or cease to qualify for
the exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Declaration of Trust to the
contrary, without the consent of the Depositor this Declaration of Trust may not
be amended in a manner which imposes any additional obligation on the Depositor.
(f) Notwithstanding any other provision of this Declaration of
Trust, no amendment to this Declaration of Trust may be made if, as a result of
such amendment, it would cause the Trust to fail to be classified as a grantor
trust for United States federal income tax purposes.
(g) In the event that any amendment to this Declaration of Trust is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
(h) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration of Trust which affects
its
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own rights, duties or immunities under this Declaration of Trust or would
otherwise expose the Property Trustee to any liability or be contrary to
applicable law. The Property Trustee shall be entitled to receive an Opinion of
Counsel and an Officers' Certificate stating that any amendment to this
Declaration of Trust is in compliance with this Declaration of Trust.
SECTION 10.4 Separability. In case any provision in this Declaration
of Trust or in the Trust Securities Certificates 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.
SECTION 10.5 Governing Law. This Declaration of Trust and the rights
and obligations of each of the Securityholders, the Trust and the Trustees with
respect to this Declaration of Trust and the Trust Securities shall be construed
in accordance with and governed by the laws of the State of Delaware without
regard to its conflict of laws principles. The provisions of Sections 3540 and
3561 of Title 12 of the Delaware Code shall not apply to this Trust.
SECTION 10.6 Payments Due on Non-Business Day. If the date fixed for
any payment on any Trust Security shall be a day that is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day that is a Business Day (except as otherwise provided in Section
4.02(d)), with the same force and effect as though made on the date fixed for
such payment, and no interest shall accrue thereon for the period after such
date.
SECTION 10.7 Successors. This Declaration of Trust shall be binding
upon and shall inure to the benefit of any successor to the Depositor, the Trust
or the Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VI of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
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SECTION 10.8 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Declaration of
Trust.
SECTION 10.9 Reports, Notices and Demands. Any report, notice,
demand or other communication which by any provision of this Declaration of
Trust is required or permitted to be given or served to or upon any
Securityholder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Capital
Securityholder, to such Capital Securityholder as such Securityholder's name and
address may appear on the Securities Register, and (b) in the case of the Common
Securityholder or the Depositor, to North Fork Bancorporation, Inc., 275 Broad
Hollow Road, Melville, NY 11747, Attention: Anthony Abate, Secretary, facsimile
no.: (516) 844-1461. Any notice to Capital Securityholders may also be given to
such owners as have, within two years preceding the giving of such notice, filed
their names and addresses with the Property Trustee for that purpose. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Declaration of Trust is required or permitted to be given or served to or
upon the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to Bankers
Trust Company, Four Albany Street, 4th Floor, New York, NY 10006, Attention:
Corporate Trust and Agency Group - Corporate Market Services; (b) with respect
to the Delaware Trustee to Bankers Trust (Delaware), 1011 Centre Road, Suite
200, Wilmington, Delaware 19805-1266, Attention: Ms. Lisa Wilkins; and (c) with
respect to the Administrative Trustees, to them at the address above for notices
to the Depositor, marked "Attention: Office of the Secretary". Such notice,
demand or other communication to or upon the Trust or the Property Trustee shall
be deemed to have been sufficiently given or made only upon actual receipt of
the writing by the Trust or the Property Trustee.
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SECTION 10.10 Agreement Not to Petition. Each of the Trustees and
the Depositor agree for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with
Article IX, they shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Laws. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.09 shall survive the
termination of this Declaration of Trust.
SECTION 10.11 Trust Indenture Act; Conflict with Trust Indenture
Act. This Declaration of Trust will not be qualified under the Trust Indenture
Act except upon the effectiveness of a registration statement. By its terms,
however, this Declaration of Trust incorporates certain provisions of the Trust
Indenture Act.
(a) This Declaration of Trust is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration of Trust
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Declaration of
Trust by any of the provisions of the Trust Indenture Act, such
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required provision shall control. If any provision of this Declaration of Trust
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Declaration of Trust as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration
of Trust shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.12 Acceptance of Terms of Declaration of Trust, Guarantee
and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION OF TRUST
AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE
AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION
OF TRUST SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
NORTH FORK BANCORPORATION,
INC., Depositor
by
----------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as
Property Trustee
by
----------------------------------
Name:
Title:
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BANKERS TRUST (DELAWARE), as
Delaware Trustee and not in
its individual capacity
by
----------------------------------
Name:
Title:
--------------------------------------
Daniel M. Healy,
as Administrative Trustee
--------------------------------------
John N. DiGiacomo,
as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST OF
NORTH FORK CAPITAL TRUST II
THIS CERTIFICATE OF TRUST of North Fork Capital Trust II (the "Trust"), dated as
of November , 1997, is being duly executed and filed by Bankers Trust
(Delaware), a Delaware banking corporation, as trustee. Daniel M. Healy, an
individual, as trustee and John N. DiGiacomo, an individual, as trustee to form
a business trust under the Delaware Business Trust Act (12 Del. C. Section 3801
et seq.).
1. Name. The name of the business trust formed hereby is North Fork
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are as
follows: Bankers Trust (Delaware), 1001 Jefferson Street, Suite 550, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
4. Duration. The Trust created hereby shall terminate on
November , 2036.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first written
above.
BANKERS TRUST (DELAWARE), not
in its individual capacity but
solely as trustee
by
----------------------------------
Name:
Title:
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DANIEL M. HEALY, not in his
individual capacity but solely
as trustee
--------------------------------------
JOHN N. DIGIACOMO, not in his
individual capacity but solely
as trustee
--------------------------------------
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EXHIBIT B
IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL SECURITIES
CERTIFICATE, INSERT--[This Capital Securities Certificate is a Global Capital
Securities Certificate within the meaning of the Declaration of Trust
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depositary") or a nominee of the Depositary. This Capital
Securities Certificate is exchangeable for 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 Capital Securities Certificate (other than a transfer of this
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 Capital Securities Certificate is presented by an
authorized representative of The Depositary Trust Company (55 Water Street, New
York) to North Fork Capital Trust II or its agent for registration of transfer,
exchange or payment, and any 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.]
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
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ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS 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 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.
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Liquidation Amount of
Certificate Number Capital Securities
CUSIP NO. [ ]
Certificate Evidencing Capital Securities
of
North Fork Capital Trust II
% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
North Fork Capital Trust II, 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 _________ ( ) Capital
Securities of the Trust representing an undivided beneficial interest in the
assets of Trust and has designated North Fork Capital Trust II _____ % Capital
Securities (Liquidation Amount $1,000 per Capital Security) (the "Capital
Securities"). The 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
Capital Securities are set forth in, and this certificate and the 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 November , 1997, 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 Capital Securities as set forth therein. The Holder
is entitled to the benefits of the Guarantee Agreement entered into by North
Fork Bancorporation, Inc., a corporation, and Bankers Trust Company, as
Guarantee trustee, dated as of November , 1997, (the "Guarantee"), to the extent
provided therein. The Trust will furnish a copy of the Declaration of Trust and
the Guarantee to the Holder without charge upon
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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 II
by
----------------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
----------------------------------
Authorized Signatory
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
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 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 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.
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EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Liquidation Amount of
Certificate Number Common Securities
Certificate Evidencing Common Securities
of
North Fork Capital Trust II
% Common Securities
(Liquidation Amount $1,000 per Common Security)
North Fork Capital Trust II, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that North
Fork Bancorporation, Inc. (the "Holder") is the registered owner of 3,093 ( )
common securities of the Trust representing beneficial interests of the Trust
and designated the _______ % Common Securities (Liquidation Amount $1,000 per
Common Security) (the "Common Securities"). Except as provided in Section 5.11
of the Declaration of Trust (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented 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 November , 1997, 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 the Common Securities as set forth therein. The
Trust will furnish a copy of the Declaration of Trust to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
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Terms used but not defined herein have the meanings set forth in the
Declaration of Trust.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this __ day of ________, ___.
NORTH FORK CAPITAL TRUST II
by
----------------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
----------------------------------
Authorized Signatory
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EXHIBIT 4.7
================================================================================
AMENDED AND RESTATED
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 HEREIN
Dated as of November , 1997
NORTH FORK CAPITAL TRUST III
================================================================================
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NORTH FORK CAPITAL TRUST III
Certain Sections of this Declaration of Trust relating to Sections
310 through 318 of the Trust Indenture Act of 1939:
Trust Indenture Declaration of
Act Section Trust Section
----------- -------------
ss.310(a)(1).......................................... 8.07
(a)(2)............................................ 8.07
(a)(3)............................................ 8.09
(a)(4)............................................ 2.07(a)(ii)
(b)............................................... 8.08
ss.311(a)............................................. 8.13
(b)............................................... 8.13
ss.312(a)............................................. 5.08
(b)............................................... 5.08
(c)............................................... 5.08
ss.313(a)............................................. 8.14(a)
(a)(4)............................................ 8.14(b)
(b)............................................... 8.14(b)
(c)............................................... 10.09
(d)............................................... 8.14(c)
ss.314(a)............................................. 8.15
(b)............................................... Not Applicable
(c)(1)............................................ 8.16
(c)(2)............................................ 8.16
(c)(3)............................................ Not Applicable
(d)............................................... Not Applicable
(e)............................................... 1.01, 8.16
8.01(a),
ss.315(a)............................................. 8.03(a)
(b)............................................... 8.02, 10.09
(c)............................................... 8.01(a)
(d)............................................... 8.01, 8.03
(e)............................................... Not Applicable
ss.316(a)............................................. Not Applicable
(a)(1)(A)......................................... Not Applicable
(a)(1)(B)......................................... Not Applicable
(a)(2)............................................ Not Applicable
(b)............................................... 5.13
(c)............................................... 6.07
ss.317(a)(1).......................................... Not Applicable
(a)(2)............................................ Not Applicable
(b)............................................... 5.10
ss.318(a)............................................. 10.11
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Declaration of Trust.
<PAGE> 3
TABLE OF CONTENTS
Page
----
ARTICLE I
Defined Terms
SECTION 1.1 Definitions............................................ 2
ARTICLE II
Continuation of the Trust
SECTION 2.1 Name................................................... 16
SECTION 2.2 Office of the Delaware Trustee;
Principal Place of Business........................ 16
SECTION 2.3 Organizational Expenses................................ 16
SECTION 2.4 Issuance of the Capital Securities..................... 17
SECTION 2.5 Issuance of the Common Securities;
Subscription and Purchase of Junior
Subordinated Debt Securities....................... 17
SECTION 2.6 Declaration of Trust................................... 18
SECTION 2.7 Authorization to Enter into Certain
Transactions....................................... 18
SECTION 2.8 Assets of Trust........................................ 24
SECTION 2.9 Title to Trust Property................................ 24
ARTICLE III
Payment Account
SECTION 3.1 Payment Account........................................ 24
ARTICLE IV
Distributions; Redemption
SECTION 4.1 Distributions.......................................... 25
SECTION 4.2 Redemption............................................. 27
SECTION 4.3 Subordination of Common Securities..................... 30
SECTION 4.4 Payment Procedures..................................... 31
SECTION 4.5 Tax Returns and Reports................................ 31
SECTION 4.6 Payment of Taxes; Duties, etc. of the
Trust.............................................. 32
SECTION 4.7 Payments Under Indenture............................... 32
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Page
----
ARTICLE V
Trust Securities Certificates
SECTION 5.1 Initial Ownership...................................... 32
SECTION 5.2 Trust Securities Certificates.......................... 32
SECTION 5.3 Execution and Delivery of Trust
Securities Certificates............................ 33
SECTION 5.4 Global Capital Security................................ 33
SECTION 5.5 Registration of Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Capital Securities
Certificates; Securities Act
Legends............................................ 36
SECTION 5.6 Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates...................... 43
SECTION 5.7 Persons Deemed Securityholders......................... 44
SECTION 5.8 Access to List of Securityholders'
Names and Addresses................................ 44
SECTION 5.9 Maintenance of Office or Agency;
Transfer Agent..................................... 44
SECTION 5.10 Appointment of Paying Agent............................ 45
SECTION 5.11 Ownership of Common Securities by
Depositor.......................................... 46
SECTION 5.12 Notices to Clearing Agency............................. 46
SECTION 5.13 Rights of Securityholders.............................. 46
ARTICLE VI
Acts of Securityholders; Meetings; Voting
SECTION 6.1 Limitations on Capital
Securityholder's Voting Rights..................... 50
SECTION 6.2 Notice of Meetings..................................... 51
SECTION 6.3 Meetings of Securityholders............................ 51
SECTION 6.4 Voting Rights.......................................... 52
SECTION 6.5 Proxies, etc........................................... 52
SECTION 6.6 Securityholder Action by Written
Consent............................................ 53
SECTION 6.7 Record Date for Voting and Other
Purposes........................................... 53
SECTION 6.8 Acts of Securityholders................................ 53
SECTION 6.9 Inspection of Records.................................. 55
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<PAGE> 5
Page
----
ARTICLE VII
Representations and Warranties
SECTION 7.1 Representations and Warranties of the
Property Trustee and the Delaware
Trustee............................................ 55
SECTION 7.2 Representations and Warranties of
Depositor.......................................... 57
ARTICLE VIII
The Trustees
SECTION 8.1 Certain Duties and Responsibilities.................... 57
SECTION 8.2 Events of Default Notices; Deferral of
Interest Payment Notices........................... 60
SECTION 8.3 Certain Rights of Property Trustee..................... 60
SECTION 8.4 Not Responsible for Recitals........................... 64
SECTION 8.5 May Hold Securities.................................... 64
SECTION 8.6 Compensation, Indemnity, Fees.......................... 64
SECTION 8.7 Corporate Property Trustee Required;
Eligibility of Trustees............................ 66
SECTION 8.8 Conflicting Interests.................................. 67
SECTION 8.9 Co-Trustees and Separate Trustee....................... 67
SECTION 8.10 Resignation and Removal; Appointment
of Successor....................................... 69
SECTION 8.11 Acceptance of Appointment by Successor................. 71
SECTION 8.12 Merger, Conversion, Consolidation or
Succession to Business............................. 73
SECTION 8.13 Preferential Collection of Claims
Against Depositor or Trust......................... 73
SECTION 8.14 Reports by Property Trustee............................ 74
SECTION 8.15 Reports to the Property Trustee........................ 75
SECTION 8.16 Evidence of Compliance with Conditions
Precedent.......................................... 75
SECTION 8.17 Number of Trustees..................................... 75
SECTION 8.18 Delegation of Power.................................... 76
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<PAGE> 6
Page
----
ARTICLE IX
Termination, Liquidation and Merger
SECTION 9.1 Termination Upon Expiration Date;
Termination Upon Special Event..................... 77
SECTION 9.2 Early Termination...................................... 77
SECTION 9.3 Termination............................................ 77
SECTION 9.4 Liquidation............................................ 78
SECTION 9.5 Mergers, Consolidations, Amalgamations
or Replacements of the Trust....................... 80
ARTICLE X
Miscellaneous Provisions
SECTION 10.1 Limitation of Rights of Securityholders................ 82
SECTION 10.2 Liability of the Depositor............................. 82
SECTION 10.3 Amendment.............................................. 82
SECTION 10.4 Separability........................................... 84
SECTION 10.5 Governing Law.......................................... 84
SECTION 10.6 Payments Due on Non-Business Day....................... 85
SECTION 10.7 Successors............................................. 85
SECTION 10.8 Headings............................................... 85
SECTION 10.9 Reports, Notices and Demands........................... 85
SECTION 10.10 Agreement Not to Petition.............................. 86
SECTION 10.11 Trust Indenture Act; Conflict with
Trust Indenture Act................................ 87
SECTION 10.12 Acceptance of Terms of Declaration of
Trust, Guarantee and Indenture..................... 87
Exhibit A - Certificate of Trust
Exhibit B - Form of Capital Security
Exhibit C - Certificate Evidencing Common Securities
iv
<PAGE> 7
EXECUTION COPY
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of
November , 1997, among (i) NORTH FORK BANCORPORATION, INC., a
Delaware corporation (including any successors or assigns, the
"Depositor"), (ii) BANKERS TRUST COMPANY, a New York banking
corporation, as property trustee, (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and
not in its capacity as Property Trustee, the "Bank"), (iii)
BANKERS TRUST (Delaware), a Delaware banking corporation, as
Delaware trustee (the "Delaware Trustee"), (iv) DANIEL M.
HEALY, an individual, and JOHN N. DIGIACOMO, an individual,
each of whose address is c/o North Fork Bancorporation, Inc.
(each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees are referred to
collectively herein as the "Trustees") and (v) the several
Holders, as hereinafter defined.
W I T N E S S E T H :
WHEREAS the Depositor, the Delaware Trustee and the Administrative
Trustees have heretofore duly declared and established a business trust pursuant
to the Delaware Business Trust Act by entering into a certain Declaration of
Trust, dated as of November 14, 1997 (the "Original Declaration of Trust"), and
by the execution and filing by the Delaware Trustee and the Administrative
Trustees with the Secretary of State of the State of Delaware of the Certificate
of Trust, filed on November 14, 1997 (the "Certificate of Trust") and attached
as Exhibit A; and
WHEREAS the Depositor, the Delaware Trustee and the Administrative
Trustees desire to amend and restate the Original Declaration of Trust in its
entirety as set forth herein to provide for, among other things (i) the
<PAGE> 8
issuance and sale of the Common Securities by the Trust to the Depositor, (ii)
the issuance and sale of the % Capital Securities (the "Capital Securities")
by the Trust pursuant to the Underwriting Agreement, (iii) the acquisition by
the Trust from the Depositor of all of the right, title and interest in the
Junior Subordinated Debt Securities and (v) the appointment of Bankers Trust
Company, a New York banking corporation (in such capacity, the "Property
Trustee" and, in its separate corporate capacity and not in its capacity as
Property Trustee, the "Bank");
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of the other
parties and for the benefit of the Securityholders, hereby amends and restates
the Original Declaration of Trust in its entirety and agrees as follows:
ARTICLE I
Defined Terms
SECTION 1.1 Definitions. For all purposes of this Declaration of
Trust, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Declaration of Trust;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer
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<PAGE> 9
to this Declaration of Trust as a whole and not to any particular Article,
Section or other subdivision; and
(e) all references to the date the Capital Securities were
originally issued shall refer to the date the Capital Securities were
originally issued.
"Act" has the meaning specified in Section 6.08.
"Additional Distribution" has the meaning specified in Section
4.01(c).
"Administrative Trustee" means each of Daniel M. Healy and John N.
DiGiacomo, solely in such Person's capacity as Administrative Trustee of the
Trust continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial interest therein,
the rules and procedures of the Depositary for such Capital Security, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"Bank" has the meaning specified in the preamble to this Declaration
of Trust.
"Bankruptcy Event" means, with respect to any Person:
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<PAGE> 10
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law, or the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any substantial
part of its property or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due and its willingness to be
adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Board Resolution" means a copy of a resolution certified by the
Secretary of an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b)
a day on which banking institutions in The City of New York are authorized or
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<PAGE> 11
required by law or executive order to remain closed or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Capital Securities" means each of the Capital Securities to be
issued on the date hereof, each representing an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $1,000 per Capital
Security and having the rights provided therefor in this Declaration of Trust,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as Exhibit
B.
"Capital Securityholder" means a Person in whose name a Capital
Security or Capital Securities is registered in the Securities Register; and any
such Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Certificate of Trust" has the meaning specified in the preamble to
this Declaration of Trust.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting
Agreement.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties
5
<PAGE> 12
now assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Securities" means the % Common Securities, each representing
an undivided beneficial interest in the assets of the Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in this
Declaration of Trust, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in New York City which at the time of the execution of this
Declaration of Trust is located at Four Albany Street, New York, New York 10006;
Attention of Corporate Trust and Agency Group--Corporate Market Services.
"Declaration of Trust" means this Amended and Restated Declaration
of Trust, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Amended and Restated Declaration of Trust, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Amended and Restated Declaration of Trust and any modification, amendment
or supplement of either, respectively.
"Debenture Event of Default" means an "Event of Default" as defined
in the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York banking
corporation and any successor.
"Definitive Capital Securities Certificate" means Capital Securities
Certificates issued in certificated, fully registered form.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss.ss. 3801, et seq., as it may be amended from time
to time.
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<PAGE> 13
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Declaration of Trust solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall be 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):
(a) the occurrence of a Debenture Event of Default; or
(b) 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
(c) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trustees in this Declaration of Trust
(other than a covenant or warranty, a default in the performance or breach
of which is addressed in clause (b) or (c) above), and continuation of
such
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default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee or 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" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
"Expiration Date" has the meaning specified in Section 9.01.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Global Capital Securities" means a beneficial interest in the
Capital Securities, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Global Capital Securities Certificate" means a certificate
evidencing ownership of Global Capital Securities, substantially in the form
attached as Exhibit B.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and Bankers Trust Company, as trustee, contemporaneously with the
execution and delivery of this Declaration of Trust, for the benefit of the
holders of the Trust Securities, as amended from time to time.
"Holder" means a Person in whose name Trust Securities are
registered in the Securities Register; any such Person shall be deemed to be a
beneficial owner of such Trust Securities within the meaning of the Delaware
Business Trust Act; provided, however, that in determining whether the Holders
of the requisite amount of Capital Securities have voted on any matter provided
for in this Declaration of Trust, then for the purpose of any such
determination, so long as Definitive Capital Securities Certificates have not
been issued, the term
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Securityholders or Holders as used herein shall refer to the Owners.
"Indenture" means the Indenture, dated as of December 31, 1996,
between the Depositor and the Debenture Trustee, as trustee, (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debt Securities.
"Junior Subordinated Debt Securities" means the aggregate principal
amount of the Depositor's % Junior Subordinated Debt Securities due , issued
pursuant to the Indenture.
"Junior Subordinated Debt Securities Redemption Date" means, with
respect to any Junior Subordinated Debt Securities to be redeemed under the
Indenture, the date fixed for redemption under the Indenture.
"Letter of Representations" means the agreement among the Trust, the
Property Trustee and The Depository Trust Company ("DTC"), as the initial
Clearing Agency, dated as of the Closing Date.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) 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 their relative Liquidation Amounts and the proceeds
of which will be used to pay the Redemption Price of such
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Trust Securities, and (b) with respect to a distribution of Junior Subordinated
Debt Securities to Holders 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.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated Debt
Securities are to be distributed to Holders of Trust Securities in connection
with a termination and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section
9.04(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman
and Chief Executive Officer, President or a Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration of Trust shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
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officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and which opinion shall be reasonably acceptable to the
Property Trustee.
"Original Declaration of Trust" has the meaning specified in the
preamble to this Declaration of Trust.
"Outstanding", with respect to Capital Securities, means, as of the
date of determination, all Capital Securities theretofore executed and delivered
under this Declaration of Trust, except;
(a) Capital Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Capital Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the benefit of the Holders of such Capital Securities; provided
that if such Capital Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Declaration of Trust; and
(c) Capital Securities which have been paid or in exchange for or in
lieu of which other Capital Securities have been executed and delivered pursuant
to Sections 5.02, 5.04, 5.05, 5.11 and 5.13;
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provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Capital Securities that a Responsible Officer of such Trustee actually
knows to be so owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the outstanding Capital Securities are owned by
the Depositor, one or more of the Trustees and/or any such Affiliate. Capital
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Administrative
Trustees the pledgee's right so to act with respect to such Capital Securities
and that the pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Global
Capital Security as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly), in accordance with the rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Bank.
"Payment Account" means a segregated noninterest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Junior Subordinated Debt Securities will be held and from which
the Property Trustee shall make payments to the Securityholders in accordance
with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability
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company or corporation, unincorporated organization or government or any agency
or political subdivision thereof.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Declaration of
Trust solely in its capacity as Property Trustee of the Trust continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Declaration
of Trust, provided, however, that each Junior Subordinated Debt Securities
Redemption Date and the Stated Maturity of the Junior Subordinated Debt
Securities shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Junior Subordinated Debt Securities, allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities.
"Registration Statement" has the meaning specified in the
Registration Agreement.
"Regulatory Capital Event" has the meaning specified in Section 1.01
of the Indenture.
"Relevant Trustee" has the meaning specified in Section 8.10.
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"Responsible Officer" means, when used with respect to the Property
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer to the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration for
this Declaration of Trust, and also, with respect to a particular matter, any
other officer, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.05.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act; provided, however, that in determining whether the
Holders of the requisite amount of Capital Securities have voted on any matter
provided for in this Declaration of Trust, then for the purpose of any such
determination, so long as Definitive Capital Securities Certificates have not
been issued, the term Securityholders or Holders as used herein shall refer to
the Owners.
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"Special Event" means either a Tax Event or a Regulatory Capital
Event.
"Stated Maturity" has the meaning specified in Section 1.01 of the
Indenture.
"Tax Event" has the meaning specified in Section 1.01 of the
Indenture.
"Transfer Agent" means the Bank as set forth in the preamble to this
Declaration of Trust.
"Trust" means North Fork Capital Trust III.
"Trust Indenture Act" has the meaning specified in Section 1.01 of
the Indenture.
"Trust Property" means (a) the Junior Subordinated Debt Securities,
(b) the rights of the Property Trustee under the Guarantee, (c) any cash or
deposit in, or owing to, the Payment Account and (d) all proceeds and rights in
respect of the foregoing.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Capital Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriters" means Salomon Brothers Inc and Keefe, Bruyette
& Woods, Inc.
"Underwriting Agreement" means, the Underwriting Agreement, dated
as of November, 1997, among the Trust, the Depositor and the Underwriters.
ARTICLE II
Continuation of the Trust
SECTION 2.1 Name. The Trust continued hereby shall be known as
"North Fork Capital Trust III", as such name may be modified from time to time
by the Administrative Trustees following written notice to the Holders and the
other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
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SECTION 2.2 Office of the Delaware Trustee; Principal Place of
Business. The address of the Delaware Trustee in the State of Delaware is
Bankers Trust (Delaware), 1011 Centre Road, Suite 200, Wilmington, DE
19805-1266, Attention of Ms. Lisa Wilkins, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is in care of North Fork Bancorporation, Inc., 275 Broad Hollow Road, Melville,
NY 11747; Attention: Anthony Abate, Secretary.
SECTION 2.3 Organizational Expenses. The Depositor, as borrower on
the Junior Subordinated Debt Securities, shall pay all expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
SECTION 2.4 Issuance of the Capital Securities. The Capital
Securities to be issued will be limited to $100 million aggregate Liquidation
Amount outstanding at any one time.
On November , 1997, the Depositor and the Administrative Trustees, on
behalf of the Trust, and pursuant to the Original Declaration of Trust, and the
Underwriters executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Declaration of Trust,
an Administrative Trustee, on behalf of the Trust, shall execute or cause to be
executed in accordance with Section 5.02 and delivered to the Underwriters, a
Global Capital Securities Certificate in book-entry form, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of
Capital Securities having an aggregate Liquidation Amount of $100 million
against receipt of the aggregate purchase price of such Capital Securities
equal to of the Liquidation Amount multiplied by the number of Capital
Securities being purchased which amount the Administrative Trustee shall
promptly deliver to the Property Trustee.
SECTION 2.5 Issuance of the Common Securities; Subscription and
Purchase of Junior Subordinated Debt Securities. Contemporaneously with the
execution and
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delivery of this Declaration of Trust, an Administrative Trustee, on behalf of
the Trust, shall execute or cause to be executed in accordance with Section
5.02(a) and delivered to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of _____ Common
Securities having an aggregate Liquidation Amount of $_________ against payment
by the Depositor of $_________ which amount the Administrative Trustees shall
promptly deliver to the Property Trustee. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Depositor Junior Subordinated Debt Securities, registered in the name
of the Trust and having an aggregate principal amount equal to $___________,
and, in satisfaction of the purchase price for such Junior Subordinated Debt
Securities, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $___________.
SECTION 2.6 Declaration of Trust. The exclusive purposes and
functions of the Trust are to (a) issue and sell Trust Securities, (b) use the
proceeds from the sale of Trust Securities to acquire the Junior Subordinated
Debt Securities, (c) receive payments to be made with respect to the Junior
Subordinated Debt Securities, and (d) engage in only those other activities
necessary, advisable or incidental thereto such as registering the transfer of
the Capital Securities and complying with the terms of the Registration
Agreement. The Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein, and
the Trustees hereby accept such appointment. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
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SECTION 2.7 Authorization to Enter into Certain Transactions. (a)
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Declaration of Trust. Subject to the limitations set forth in paragraph
(b) of this Section and in accordance with the following provisions (i) and
(ii), the Trustees shall have the authority to enter into all transactions and
agreements determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees under this
Declaration of Trust, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
(A) issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Underwriting Agreement, the
Letter of Representations and such other agreements as may be
necessary or desirable in connection with the purposes and function
of the Trust;
(C) assisting in the registration of the Capital Securities
under the Securities Act of 1933, as amended and under state
securities or blue sky laws, and the qualification of this
Declaration of Trust as a trust indenture under the Trust Indenture
Act;
(D) assisting in the listing, if any, of the Capital
Securities upon such securities exchange or exchanges as shall be
determined by the Depositor and the registration of the Capital
Securities under the Securities Exchange Act of 1934, as amended,
(the "Exchange Act"), and the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
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(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Junior
Subordinated Debt Securities to the Securityholders in accordance
with this Declaration of Trust;
(F) the appointment of a Paying Agent, Transfer Agent and
Securities Registrar in accordance with this Declaration of Trust;
(G) registering transfer of the Trust Securities in accordance
with this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone or together with
any or all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Declaration of Trust; and
(J) the taking of any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration of Trust
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholders).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to
the following matters:
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(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debt Securities;
(C) the collection of interest, principal and any other
payments made in respect of the Junior Subordinated Debt Securities
in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Junior Subordinated Debt Securities;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Debt
Securities to the Securityholders in accordance with this
Declaration of Trust;
(G) the distribution of the Trust Property in accordance with
the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Declaration of Trust and protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder); and
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(J) except as otherwise provided in this Section 2.07(a)(ii),
the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in
Section 2.07(a)(i).
(b) So long as this Declaration of Trust remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transactions except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Declaration of
Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) intentionally
take any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) invest any proceeds received by the Trust from holding the Junior
Subordinated Debt Securities, but shall distribute all such proceeds to Holders
pursuant to the terms of this Declaration of Trust and of the Trust Securities,
(vii) acquire any assets other than the Trust Property, (viii) possess any power
or otherwise act in such a way as to vary the Trust Property, (ix) possess any
power or otherwise act in such a way as to vary the terms of the Trust
Securities in any way whatsoever (except to the extent expressly authorized in
this Declaration of Trust or by the terms of the Trust Securities), (x) issue
any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Trust Securities, or (xi) other than as
provided in this Declaration of Trust or by the terms of the Trust Securities,
(A) direct the time, method and place of exercising any trust or power conferred
upon the Debenture Trustee with respect to the Junior Subordinated Debt
Securities, (B) waive any past default that is waivable under the Indenture, (C)
exercise any right to rescind or annul any declaration that the principal of all
Junior Subordinated Debt Securities shall be due and payable, or (D) consent to
any amendment, modification, or termination of the
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Indenture or the Junior Subordinated Debt Securities where such consent shall be
required unless the Trust shall have received an Opinion of Counsel to the
effect that such amendment, modification or termination will not cause more than
an insubstantial risk that the Trust will be deemed an Investment Company
required to be registered under the Investment Company Act, the Trust will not
be classified as a grantor trust for United States federal income tax purposes
or the Junior Subordinated Debt Securities will not be classified as
indebtedness for such purposes. The Administrative Trustees shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Securityholders in
their capacity as Securityholders.
(c) In connection with the issue and sale of the Trust Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Declaration of Trust are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Trust Securities, including any
amendments thereto;
(ii) the determination of the states in which to take appropriate
action to qualify or register for sale all or part of the Trust Securities
and the determination of any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and the advice to the Trustees
of actions they must take on behalf of the Trust, and the preparation for
execution and filing of any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such states;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the NASDAQ National
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Market for listing upon notice of issuance of any Trust Securities;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Trust Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Trust
Securities; and
(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not (i) be deemed to
be an "investment company" required to be registered under the Investment
Company Act of 1940, as amended, or (ii) fail to be classified as a grantor
trust for United States federal income tax purposes and so that the Junior
Subordinated Debt Securities will be treated as indebtedness of the Depositor
for United States federal income tax purposes. In this connection, the Depositor
and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Declaration
of Trust, that each of the Depositor and the Administrative Trustees determines
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the holders of the Trust Securities.
SECTION 2.8 Assets of Trust. The assets of the Trust shall consist
solely of the Trust Property.
SECTION 2.9 Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with this Declaration
of Trust.
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ARTICLE III
Payment Account
SECTION 3.1 Payment Account. (a) On or prior to the Closing Date,
the Property Trustee shall establish the Payment Account. The Property Trustee
and any agent of the Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Declaration of Trust. All moneys and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein or by applicable law.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Junior Subordinated Debt
Securities. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
Distributions; Redemption
SECTION 4.1 Distributions. (a) Distributions on the Trust Securities
shall be cumulative and will accumulate whether or not there are funds of the
Trust available for the payment of Distributions. Distributions shall accrue
from November , 1997, and, except in the event (and to the extent) that the
Depositor exercises its right to defer the payment of interest on the Junior
Subordinated Debt Securities pursuant to the Indenture, shall be payable
semi-annually in arrears on __________ and __________ of each year, commencing
on ___________, 1998. If any date on which a Distribution is otherwise payable
is not a Business Day, then the payment of such Distribution shall be made on
the next succeeding day that is a Business Day (and
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without any interest or other payment in respect of any such delay), in each
case with the same force and effect as if made on such date (each date on which
distributions are payable in accordance with this Section 4.01(a), a
"Distribution Date"). Accrued Distributions that are not paid on the applicable
Distribution Date will bear interest on the amount thereof (to the extent
permitted by law) at the rate per annum of thereof, compounded semi-annually
from the relevant Distribution Date.
(b) The Trust Securities represent undivided beneficial ownership
interests in the Trust Property, and, assuming payments of interest on the
Junior Subordinated Debt Securities are made when due (and before giving effect
to Additional Distributions, defined below, if applicable), Distributions on the
Trust Securities shall be payable at a rate of per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions payable for any full
period shall be computed on the basis of a 360-day year of twelve 30-day
months. The amount of Distributions for any partial period shall be computed on
the basis of the number of days elapsed in a 360-day year of twelve 30-day
months. The amount of Distributions payable for any period shall include the
Additional Distributions, if any.
(c) So long as no Debenture Event of Default has occurred and is
continuing, the Depositor has the right under the Indenture to defer the payment
of interest on the Junior Subordinated Debt Securities at any time and from time
to time for a period not exceeding 10 consecutive semi-annual periods (an
"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 deferral, semi-annual Distributions on the Trust Securities by the
Trust will also be deferred (and the amount of Distributions to which Holders
are entitled will accumulate additional Distributions thereon at the rate
of per annum, compounded semi-annually) from the relevant payment date for
such Distributions, but not exceeding the interest rate then accruing on the
Junior Subordinated Debt Securities (each type of increase in Distribution,
described in this Section 4.01(c), an "Additional Distribution").
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(d) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on-hand and
available in the Payment Account for the payment of such Distributions.
(e) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders of record as they appear on
the Securities Register for the Trust Securities on each ___________ and
___________.
SECTION 4.2 Redemption. (a) On each Junior Subordinated Debt
Securities Redemption Date and on the Stated Maturity of the Junior Subordinated
Debt Securities, the Trust will be required to redeem a Like Amount of Trust
Securities at the applicable Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall identify the Trust Securities to be redeemed (including CUSIP
numbers) and shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price;
(iii) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
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(iv) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date.
The Trust in issuing the Trust Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall indicate the
"CUSIP" numbers of the Trust Securities in notices or redemption and related
materials as a convenience to Securityholders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Trust Securities or as contained in any notice of
redemption and related material. The Depositor shall promptly notify the
Property Trustee of any change in such numbers.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the applicable Redemption Price with the proceeds from the
contemporaneous redemption of 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
then on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Trust Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee will, so long
as the Capital Securities are in book-entry-only form, irrevocably deposit with
the Clearing Agency for the Capital Securities funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the holders thereof.
With respect to Capital Securities held in certificated form, the Property
Trustee, subject to Section 4.02(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing,
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Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register 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 Securityholders holding Trust Securities so called for redemption
will cease, except the right of such Securityholders to receive the applicable
Redemption Price and any Distribution payable on or prior to the Redemption
Date, but without interest, and such Capital Securities will cease to be
outstanding. In the event that any date on which any applicable Redemption Price
is payable is not a Business Day, then payment of the applicable Redemption
Price 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), except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date. In the event that
payment of the applicable Redemption Price in respect of any Trust Securities
called for redemption is improperly withheld or refused and not paid either by
the Trust or by the Depositor pursuant to the Guarantee, Distributions on such
Trust Securities will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust Securities 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.
(e) Payment of the applicable Redemption Price on, and any
distributions of Junior Subordinated Debt Securities to Holders of, the Trust
Securities shall be made to the Holders thereof as they appear on the Securities
Register on the relevant record date, and, with respect to Trust Securities held
in certificated form, upon surrender of such certificated Trust Securities to
the Paying Agent.
(f) Subject to Section 4.03(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation
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Amount of Trust Securities to be redeemed shall be allocated on a pro rata basis
(based on Liquidation Amounts) among the Trust Securities. The particular Trust
Securities to be redeemed shall be selected on a pro rata basis (based upon
Liquidation Amounts) not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Trust Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or an integral multiple of $1,000 in excess thereof) of the
Liquidation Amount of Trust Securities of a denomination larger than $1,000. The
Property Trustee shall promptly notify the Security Registrar in writing of the
Trust Securities selected for redemption and, in the case of any Trust
Securities selected for partial redemption, the Liquidation Amount thereof to be
redeemed. For all purposes of this Declaration of Trust, unless the context
otherwise requires, all provisions relating to the redemption of Trust
Securities shall relate in the case of any Trust Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of Trust
Securities that has been or is to be redeemed.
SECTION 4.3 Subordination of Common Securities. (a) Payment of
Distributions (including Additional Distributions, if applicable) on, and the
Redemption Price of the Trust Securities, as applicable, shall be made subject
to Section 4.02(f), pro rata to the holders of the 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 other Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Distributions,
if applicable) on, or 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 (including Additional Distributions, if
applicable) on all outstanding Capital Securities for all Distribution Dates
occurring on or prior thereto, or, in the case of payment of the applicable
Redemption Price the full amount of such Redemption Price on all outstanding
Capital Securities, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all
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Distributions (including Additional Distributions, if applicable) on, or the
Redemption Price of, Capital Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Declaration of Trust until the effect of all such Events of Default
with respect to the Capital Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Declaration of Trust
with respect to the Capital Securities have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Capital Securities and not on behalf of the 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.
SECTION 4.4 Payment Procedures. In the event Definitive Capital
Securities Certificates are issued, payments of Distributions (including
Additional Distributions, if applicable) in respect of the Capital Securities
shall be made by check mailed to the address of the Person entitled thereto at
such address as shall appear on the Securities Register. If the Capital
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, which shall credit the
relevant Persons' accounts at such Clearing Agency on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be made
in such manner as shall be mutually agreed between the Property Trustee and the
Common Securityholder.
SECTION 4.5 Tax Returns and Reports. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and
filed) the appropriate Internal Revenue Service form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
appropriate
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Internal Revenue Service form required to be provided pursuant to the form
referenced in clause (a) hereof. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Administrative Trustees shall
comply with United States federal withholding and backup withholding tax laws
and information reporting requirements with respect to any payments to
Securityholders.
SECTION 4.6 Payment of Taxes; Duties, etc. of the Trust. Pursuant to
Section 10.06 of the Indenture, the Depositor, as borrower on the Junior
Subordinated Debt Securities, has agreed to, and it shall, promptly pay any
taxes, duties or governmental charges of whatever nature (other than United
States withholding taxes) imposed on the Trust by the United States or any other
taxing authority.
SECTION 4.7 Payments Under Indenture. Any amount payable hereunder
to any Holder (and any Owner with respect thereto) shall be reduced by the
amount of any corresponding payment such Holder (and Owner) has directly
received pursuant to Section 5.08 of the Indenture.
ARTICLE V
Trust Securities Certificates
SECTION 5.1 Initial Ownership. Upon the formation of the Trust and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 5.2 Trust Securities Certificates. (a) The Capital
Securities Certificates and the Common Securities Certificates shall be issued
in denominations of $1,000 Liquidation Amount and integral multiples thereof.
The Trust Securities Certificates shall be executed on behalf of the Trust by
the manual or facsimile signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures
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shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Declaration of Trust,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.04, 5.05
and 5.06.
(b) Except as set forth herein, record ownership of the Global
Capital Security may be transferred, in whole or in part, only to another
nominee of DTC or to a successor of DTC or its nominee.
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3 Execution and Delivery of Trust Securities Certificates.
At the Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust and delivered to the Property
Trustee and upon such delivery the Property Trustee shall countersign such Trust
Securities Certificates and deliver such Trust Securities Certificates upon the
written order of the Depositor, signed by its chairman of the board and
president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4 Global Capital Security. (a) The Global Capital Security
issued under this Declaration of Trust shall be registered in the name of Cede
as nominee of the Clearing Agency and delivered to its custodian therefor, and
such Global Capital Security shall constitute a single Capital Security for all
purposes of this Declaration of Trust.
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(b) Notwithstanding any other provision in this Declaration of
Trust, the Global Capital Security may not be exchanged in whole or in part for
Capital Securities registered, and no transfer of the Global Capital Security in
whole or in part may be registered, in the name of any Person other than the
Clearing Agency for such Global Capital Security, Cede, or other nominee thereof
unless (i) such Clearing Agency advises the Property Trustee in writing that
such Clearing Agency is no longer willing or able to properly discharge its
responsibilities as Clearing Agency with respect to such Global Capital
Security, and the Depositor is unable to locate a qualified successor, (ii) the
Trust at its option advises DTC in writing that it elects to terminate the
book-entry system through the Clearing Agency, 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 Capital Securities upon request by DTC, but only upon at least
20 days prior written notice given to the Property Trustee in accordance with
the Applicable Procedures.
(c) If the Global Capital Security is to be cancelled in whole, it
shall be surrendered by or on behalf of the Clearing Agency or its nominee to
the Securities Registrar for exchange or cancellation as provided in this
Article V. If the Global Capital Security is to be cancelled in part, or if
another Capital Security is to be exchanged in whole or in part for a
beneficial interest in the Global Capital Security, then either (i) such Global
Capital Security shall be so surrendered for exchange or cancellation as
provided in this Article V or (ii) the liquidation amount thereof shall be
reduced, subject to Section 5.02, or increased by an amount equal to the
portion thereof to be so exchanged or cancelled, or equal to the liquidation
amount of such other Capital Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment
made on the records of the Security Registrar, whereupon the Property Trustee,
in accordance with the Applicable Procedures, shall instruct the Clearing
Agency or its authorized representative to make a corresponding adjustment to
its records. Upon any such surrender or adjustment of the Global Capital
Security by the Clearing Agency and Clearing Agency Participants, accompanied
by registration
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instructions executed by an Administrative Trustee on behalf of the Trust, the
Property Trustee shall, subject to this Article V, countersign and deliver any
executed Capital Securities delivered to it issuable in exchange for such Global
Capital Security (or any portion thereof) in accordance with the instructions of
the Clearing Agency. The Property Trustee shall not be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) The Clearing Agency or its nominee, as the registered owner of
the Global Capital Security, shall be considered the Holder of the Capital
Securities represented by the Global Capital Security for all purposes under
this Declaration of Trust and the Capital Securities, and owners of beneficial
interests in the Global Capital Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided herein, shall not be
entitled to have any of the individual Capital Securities represented by the
Global Capital Security registered in their names, shall not receive nor be
entitled to receive physical delivery of any such Capital Securities in
definitive form and shall not be considered the Holders thereof under this
Declaration of Trust. Accordingly, any such owner's beneficial interest in the
Global Capital Security shall he shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Clearing
Agency or its nominee. The Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this Declaration
of Trust relating to the Global Capital Securities (including the payment of the
Liquidation Amount of and Distributions on the Global Capital Securities and the
giving of instructions or directions to Owners of Global Capital Securities) as
the sole Holder of Global Capital Securities and shall have no obligations to
the Owners thereof. Neither the Property Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by the Clearing
Agency.
(e) The rights of owners of beneficial interests in the Global
Capital Security shall be exercised only through the Clearing Agency and shall
be
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limited to those established by law and agreements between such owners and the
Clearing Agency.
SECTION 5.5 Registration of Transfer and Exchange Generally; Certain
Transfers and Exchanges; Capital Securities Certificates; Securities Act
Legends. (a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of registering
Capital Securities Certificates and Common Securities Certificates and transfers
and exchanges of Capital Securities Certificates and Common Securities
Certificates in which the registrar and transfer agent with respect to the
Capital Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject to Section
5.11 in the case of Common Securities Certificates) and registration of
transfers and exchanges of Capital Securities Certificates and Common Securities
Certificates as herein provided. Such register is herein sometimes referred to
as the "Securities Register." The Property Trustee is hereby appointed
"Securities Registrar" for the purpose of registering Capital Securities and
transfers of Capital Securities as herein provided. The provisions of Sections
8.01, 8.03 and 8.06 hereunder shall apply to the Property Trustee also in its
role as Securities Registrar.
Upon surrender for registration of transfer of any Capital Security
at the offices or agencies of the Property Trustee designated for that purpose,
the Administrative Trustees shall execute, and the Property Trustee shall
countersign and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities of any authorized denominations
of like tenor and aggregate liquidation amount and bearing such restrictive
legends as may be required by this Declaration of Trust.
At the option of the Holder, Capital Securities may be exchanged for
other Capital Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such restrictive legends as may be
required by this Declaration of Trust, upon surrender of the Capital Securities
to be exchanged at such office or agency. Whenever any securities are so
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surrendered for exchange, the Depositor shall execute and the Property Trustee
shall countersign and deliver the Capital Securities that the Holder making the
exchange is entitled to receive.
All Capital Securities issued upon any transfer or exchange of
Capital Securities shall be the valid obligations of the Trust, entitled to the
same benefits under this Declaration of Trust as the Capital Securities
surrendered upon such transfer or exchange.
Every Capital Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Capital Securities, but the Property Trustee or the Securities
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Capital Securities.
Neither the Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register the transfer
of or exchange any Capital Security during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Capital
Securities pursuant to Article IV and ending at the close of business on the day
of such mailing of the notice of redemption, or (ii) to register the transfer of
or exchange any Capital Security so selected for redemption in whole or in part,
except, in the case of any such Capital Security to be redeemed in part, any
portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Subject to Section 5.04(c), but
notwithstanding any other provision of this Declaration of Trust, transfers and
exchanges of Capital Securities and beneficial interests in a Global Capital
Security shall be made only in accordance with this Section 5.05(b) and Section
5.04(c).
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(i) Non-Global Capital Security to Global Security. If the Holder of
a Restricted Capital Security (other than the Global Security) wishes at
any time to transfer all or any portion of such Capital Security to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Global Security, such transfer may be effected only in
accordance with the provisions of this Clause (b)(i) and subject to the
Applicable Procedures. Upon receipt by the Securities Registrar of (A)
such Capital Security as provided in Section 5.05(a) and instructions
satisfactory to the Securities Registrar directing that a beneficial
interest in the Global Security in a specified liquidation amount not
greater than the liquidation amount of such Capital Security to be
credited to a specified Clearing Agency Participant's account and (B) a
Capital Securities Certificate duly executed by such Holder or such
Holder's attorney duly authorized in writing, then the Securities
Registrar shall cancel such Capital Security (and issue a new Capital
Security in respect of any untransferred portion thereof) as provided in
Section 5.01(a) and increase the aggregate liquidation amount of the
Global Capital Security by the specified liquidation amount as provided in
Section 5.04(c).
(ii) Non-Global Security to Non-Global Security. A Capital Security
that is not a Global Capital Security may be transferred, in whole or in
part, to a Person who takes delivery in the form of another Capital
Security that is not a Global Security as provided in Section 5.05(a).
(iii) Exchanges Between Global Capital Security and Non-Global
Capital Security. A beneficial interest in the Global Capital Security may
be exchanged for a Capital Security that is not a Global Capital Security
as provided in Section 5.04.
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SECTION 5.6 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. Provided Definitive Capital Securities Certificates are issued, if
(a) any mutilated Trust Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided
beneficial interest in the assets of the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.
SECTION 5.7 Persons Deemed Securityholders. The Trustees or the
Securities Registrar shall treat the Person in whose name any Trust Securities
are issued as the owner of such Trust Securities for the purpose of receiving
distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.8 Access to List of Securityholders' Names and Addresses.
Each Owner of Trust Securities acknowledges that the Depositor, the Property
Trustee, the Delaware Trustee or the Administrative Trustees may from time to
time make reasonable use of information consisting of such Owner's name and
address, including the furnishing of a list of such names and addresses as
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contemplated hereunder, and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.9 Maintenance of Office or Agency; Transfer Agent. The
Administrative Trustees shall maintain an office or offices or agency or
agencies where Definitive Capital Securities Certificates, if issued, may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities may be
served. The Administrative Trustees initially designate Bankers Trust Company,
Four Albany Street, New York, NY 10006, Attention: Corporate Trust and Agency
Group Corporate Market Services, as its corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency. The Bank shall act as initial
transfer agent for the Trust Securities.
SECTION 5.10 Appointment of Paying Agent. The Paying Agent shall
make Distributions to Securityholders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions referred to
above. The Administrative Trustees may revoke such power and remove any Paying
Agent if such Administrative Trustees determine in their sole discretion that
such Paying Agent shall have failed to perform its obligations under this
Declaration of Trust in any material respect. The Paying Agent shall initially
be the Bank, and any co-paying agent chosen by the Bank, and acceptable to the
Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Depositor. In the event
that the Bank shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Administrative Trustees
shall appoint
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a successor that is acceptable to the Property Trustee and the Depositor to act
as Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 herein
shall apply to the Bank also in its role as Paying Agent, for so long as the
Bank shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Declaration of Trust to
the Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 5.11 Ownership of Common Securities by Depositor. The
Depositor shall acquire and retain beneficial and record ownership of the Common
Securities. To the fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger of the Depositor into another
corporation, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 8.01 of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.12 Notices to Clearing Agency. To the extent that a notice
or other communication to the Owners is required under this Declaration of
Trust, for so long as Capital Securities are represented by a Global Securities
Certificate, the Trustees shall give all such notices and communications
specified herein to be given to Owners to the Clearing Agency, and shall have no
obligations to give duplicates thereof to the Owners.
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SECTION 5.13 Rights of Securityholders. (a) The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than the undivided beneficial ownership
interest in the assets of the Trust conferred by their Trust Securities and they
shall have no right to call for any partition or division of property, profits
or rights of the Trust except as described below. The Trust Securities shall be
personal property giving only the rights specifically set forth therein and in
this Declaration of Trust. The Trust Securities shall have no preemptive or
singular rights and when issued and delivered to Securityholders against payment
of the purchase price therefor will be fully paid and nonassessable. The
Holders, in their capacities as such, shall 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.
(b) For so long as any Capital Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders of
not less than 25% in liquidation amount of the outstanding Junior Subordinated
Debt Securities fail to declare the principal amount of all of the Junior
Subordinated Debt Securities to be immediately due and payable, the Holders of
at least 25% in Liquidation Amount of the Capital Securities then Outstanding
shall have such right by a notice in writing to the Depositor and the Debenture
Trustee with a copy to the Property Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Junior Subordinated
Debt Securities shall become immediately due and payable; provided that the
payment of principal and interest on such Junior Subordinated Debt Securities
shall remain subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to
the Junior Subordinated Debt Securities has been made and before a judgment or
decree for payment of the money due has been obtained by the Debenture Trustee
as provided in the Indenture, the Holders of a majority in Liquidation Amount of
the
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Capital Securities, by written notice to the Property Trustee, the Depositor and
the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Junior Subordinated Debt Securities,
(B) the principal of (and premium, if any, on) any Junior
Subordinated Debt Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
borne by the Junior Subordinated Debt Securities, and
(C) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the Property
Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Junior Subordinated
Debt Securities, other than the non-payment of the principal of the Junior
Subordinated Debt Securities which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13 of the
Indenture.
If the Property Trustee fails to annul any such declaration and
waive such default, the Holders of Capital Securities representing a majority in
aggregate Liquidation Amount of all the Outstanding Capital Securities shall
also have the right to rescind and annul such declaration and its consequences
by written notice to the Depositor, the Property Trustee and the Debenture
Trustee, subject to the satisfaction of the conditions set forth in Clause (i)
and (ii) of this Section 5.13(b).
The Holders of a majority in aggregate Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
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waive any past default under the Indenture, except a default in the payment of
principal 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 Junior Subordinated Debt
Securities. No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of the
Capital Securities all or part of which is represented by Global Capital
Securities, a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided that, unless such
acclamation of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90 day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Declaration of
Trust and the Indenture, upon a Debenture Event of Default specified in Section
5.01(1) or 5.01(2) of the Indenture,
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any Holder of Capital Securities shall have the right to institute a proceeding
directly against the Depositor, pursuant to Section 5.08 of the Indenture, for
enforcement of payment to such Holder of the principal amount of or interest on
Junior Subordinated Debt Securities having a principal amount equal to the
Liquidation Amount of the Capital Securities of such Holder (a "Direct Action").
Except as set forth in Sections 5.13(b) and 5.13(c), the Holders of Capital
Securities shall have no right to exercise directly any right or remedy
available to the holders or, or in respect of, the Junior Subordinated Debt
Securities.
(d) A Securityholder may institute a legal proceeding directly
against the Guarantor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust or any
person or entity.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
SECTION 6.1 Limitations on Capital Securityholder's Voting Rights.
(a) Except as provided in this Declaration of Trust and in the Indenture and as
otherwise required by law, no Holder of Capital Securities shall have any right
to vote or in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Capital Securityholders from
time to time as partners or members of an association. Unless a Debenture Event
of Default shall have occurred and be continuing, any Trustee may be removed at
any time by the vote of the Common Securityholder. The right to vote to appoint,
remove or replace the Administrative Trustees is vested exclusively in the
Depositor as the Holder of the Common Securities.
(b) So long as any Junior Subordinated Debt Securities are held by
the Property Trustee, the 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
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conferred on the Property Trustee with respect to such Junior Subordinated Debt
Securities, (ii) waive any past default which 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 at least 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 written consent of each Holder of Capital Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of Capital Securities, except by a subsequent vote of the Holders of
Capital Securities. The Property Trustee shall notify all Holders of the Capital
Securities of any notice of default received from the Debenture Trustee with
respect to the Junior Subordinated Debt Securities. In addition to obtaining the
foregoing approvals of the Holders of the Capital Securities, prior to taking
any of the foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust will not fail to be classified as a grantor trust for
United States federal income tax purposes on account of such action.
(c) If any proposed amendment to the Declaration of Trust provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences or
special rights of the Trust Securities, whether by way of amendment to the
Declaration of Trust or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Declaration
of Trust, then the Holders of Outstanding Trust Securities as a class will be
entitled to vote on such amendment or proposal.
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SECTION 6.2 Notice of Meetings. Notice of all meetings of the
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 10.09 to each Securityholder
of record, at his registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
SECTION 6.3 Meetings of Securityholders. No annual meeting of
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Securityholders of record of 25% of the Securities (based upon
their Liquidation Amount) and the Administrative Trustees or the Property
Trustee may, at any time in their discretion, call a meeting of Securityholders
to vote on any matters as to which Securityholders are entitled to vote.
Securityholders of record of 50% of the Outstanding Securities
(based upon their Liquidation Amount), present in person or represented by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Securityholders of record present, in person or by proxy, holding more than a
majority of the Securities (based upon their Liquidation Amount) held by the
Securityholders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Securityholders, unless this Declaration of
Trust requires a greater number of affirmative votes.
SECTION 6.4 Voting Rights. Securityholders shall be entitled to one
vote for each $1,000 of Liquidation Amount represented by their Outstanding
Trust Securities in respect of any matter as to which such Securityholders are
entitled to vote.
SECTION 6.5 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy; provided that no
proxy shall be voted at any meeting unless it shall have been placed
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on file with the Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for verification prior to
the time at which such vote shall be taken. Proxies may be solicited in the name
of the Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several persons, any one of them may vote at any meeting in
person or by proxy in respect of such Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such joint owners or
their proxies so present disagree as to any vote to be cast, such vote shall not
be received in respect of such Securities. A proxy purporting to be executed by
or on behalf of a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6 Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by any
express provision of this Declaration of Trust) shall consent to the action in
writing.
SECTION 6.7 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
in respect of which a record date is not otherwise provided for in this
Declaration of Trust, or for the purpose of any other action, the Administrative
Trustees may from time to time fix a date, not more than 90 days prior to the
date of any meeting of Securityholders or the payment of a distribution or other
action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
SECTION 6.8 Acts of Securityholders. Any request, demand,
authorization, direction, notice,
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consent, waiver or other action provided or permitted by this Declaration of
Trust to be given, made or taken by Securityholders or Owners may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Securityholders or Owners in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders or Owners signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Declaration of Trust and (subject to
Section 8.01) conclusive in favor of the Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be provided by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Registrar.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind every
future Securityholder of the same Trust Security and the Securityholder of every
Trust Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in
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reliance thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may do
so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such Liquidation
Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to enforce its rights under the
Guarantee Agreement without first instituting a legal proceeding against the
Guarantee Trustee (as defined in the Guarantee Agreement), the Trust, any
Trustee or any person or entity.
SECTION 6.9 Inspection of Records. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
Representations and Warranties
SECTION 7.1 Representations and Warranties of the Property Trustee
and the Delaware Trustee. The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and
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warrants for the benefit of the Depositor and the Securityholders that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of
New York, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of this Declaration.
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee; and the Declaration has been
duly executed and delivered by the Property Trustee, and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
(d) At the Closing Date, the Property Trustee has not knowingly
created any liens or encumbrances on such Trust Securities.
(e) No consent, approval or authorization of, or registration with
or notice to, any New York State or federal banking authority is required
for the execution, delivery or performance by the Property Trustee, of the
Declaration.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power
and authority to execute and deliver, and to carry out
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and perform its obligations under the terms of, the Declaration.
(g) The execution, delivery and performance by the Delaware Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee; and the Declaration has been
duly executed and delivered by the Delaware Trustee, and constitutes a
legal, valid and binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' right generally and to general principles of equity and the
discretion of the court regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance or the Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with
or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this
Declaration.
(j) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
SECTION 7.2 Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Securityholders
that the Trust Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Declaration of
Trust, and the Securityholders will be, as of each such date, entitled to the
benefits of this Declaration of Trust.
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ARTICLE VIII
The Trustees
SECTION 8.1 Certain Duties and Responsibilities. (a) The duties and
responsibilities of the Trustees shall be as provided by this Declaration of
Trust and, in the case of the Property Trustee, by the Trust Indenture Act;
provided, however, that the Property Trustee shall not be subject to the
provisions of the Trust Indenture Act until such time as this Declaration of
Trust becomes qualified under the Trust Indenture Act upon the effectiveness of
a registration statement. Notwithstanding the foregoing, no provisions of this
Declaration of Trust shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers, if
they shall have reasonable grounds for believing that repayment of such funds or
indemnity satisfactory to it against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of
this Declaration of Trust relating to the conduct or affecting the liability of
or affording protection to the Trustees shall be subject to the provisions of
this Article. Nothing in this Declaration of Trust shall be construed to release
an Administrative Trustee from liability for his own grossly negligent action,
his own grossly negligent failure to act, or his own wilful misconduct. To the
extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
the Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Declaration of Trust. The provisions of this Declaration of
Trust, to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the
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Trust Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.01(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Declaration of Trust or, in the case of the Property Trustee, in the Trust
Indenture Act, if applicable.
(c) No provision of this Declaration of Trust shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in Liquidation
Amount of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Junior Subordinated Debt
Securities and the Payment Account shall be to deal with such Property in
a similar manner as the Property Trustee deals with similar property for
its own account, subject to the projections and limitations on liability
afforded to the Property
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Trustee under this Declaration of Trust and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.01 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Declaration of Trust nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
SECTION 8.2 Events of Default Notices; Deferral of Interest Payment
Notices. Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived. The 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.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Junior
Subordinated Debt Securities pursuant to the Indenture, the Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
SECTION 8.3 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01:
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(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration of Trust
the Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Declaration of
Trust the Property Trustee finds the same ambiguous or inconsistent with
any other provisions contained herein (iii) the Property Trustee is unsure
of the application of any Provision of this Declaration of Trust, then,
except as to any matter as to which the Securityholders are entitled to
vote under the terms of this Declaration of Trust, the Property Trustee
shall deliver a notice to the Depositor requesting written instructions of
the Depositor as to the course of action to be taken and the Property
Trustee shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that if the Property
Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall
be under no duty to, take or refrain from taking such action not
inconsistent with this Declaration of Trust as it shall deem advisable and
in the best interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith, negligence
or wilful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustee contemplated by this
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Declaration of Trust shall be sufficiently evidenced by an Officers'
Certificate;
(d) whenever in the administration of this Declaration of Trust, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Depositor or the Administrative
Trustees; (which Officers' Certificate will be evidence only for purposes
of determining entitlement to indemnification of the Property Trustee from
the Depositor but not with respect to any liability to Securityholders).
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees) and the advice of such counsel shall
be full and complete authorization and protection in respect of any action
taken suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice, such counsel may be counsel to
the Depositor or any of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration of Trust
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration of Trust at
the request or direction of any of the Securityholders pursuant to this
Declaration of Trust, unless such Securityholders shall have offered to
the Property
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Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Securityholders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(i) the Property Trustee may execute any of its trusts or powers
hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of or for the
supervision of any such agent or attorney appointed by it with due care
hereunder;
(j) whenever in the administration of this Declaration of Trust the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be fully
protected in acting in accordance with instructions;
(k) except as otherwise expressly provided by this Declaration of
Trust, the Property Trustee shall not be under any obligation to take any
action
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that is discretionary under the provisions of this Declaration of Trust;
(l) when the Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law
or law relating to creditors rights generally; and
(m) the Property Trustee shall not be charged with knowledge or an
Event of Default unless a Responsible Officer of the Property Trustee
obtains actual knowledge of such event or the Property Trustee receives
written notice of such event from Securityholders holding at least 25%, of
the Outstanding Trust Securities (based upon Liquidation Amount).
No provision of this Declaration of Trust shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.4 Not Responsible for Recitals. The recitals contained
herein and in the Trust Securities Certificates shall be taken as the statements
of Trust, and the Trustees do not assume any responsibility for their
correctness. The Trustees shall not be accountable for the use or application by
the Depositor of the proceeds of the Junior Subordinated Debt Securities.
SECTION 8.5 May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.08
and 8.13, may otherwise deal
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with the Trust with the same rights it would if it were not a Trustee or such
other agent.
SECTION 8.6 Compensation, Indemnity, Fees. Pursuant to Section 10.06
of the Indenture, the Depositor, as borrower on the Junior Subordinated Debt
Securities, agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Declaration of Trust (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or wilful misconduct;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or
agent of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to
be within the scope of authority conferred on such Indemnified Person by
this Declaration of Trust, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence or wilful
misconduct with respect to such acts or omissions; and
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(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to
time, prior to the final disposition of such claim, demand action, suit or
proceeding upon receipt by the Depositor of (i) a written affirmation by
or on behalf of the Indemnified Person of its or his good faith belief
that it or he has met the standard of conduct set forth in this Section
8.06 and (ii) an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is
not entitled to be indemnified as authorized in the preceding subsection.
The provisions of this Section 8.06 shall survive the termination of
this Declaration of Trust or the earlier resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.06.
The Depositor and any Trustee (in the case of the Property Trustee,
subject to Section 8.08 hereof) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and none of the Trust, the
Holders, the Depositor or any such Trustee shall have any rights by virtue of
this Declaration of Trust in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Depositor, nor any Trustee, shall be obligated to present
any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and the Depositor or any Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the Depositor
or any Affiliate of the Depositor, or may act as depository for, trustee or
agent for, or act on any
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committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
SECTION 8.7 Corporate Property Trustee Required; Eligibility of
Trustees. (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least $50
million. If any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article; provided, however, that the Property Trustee need not qualify under the
Trust Indenture Act until such time as this Declaration of Trust is qualified
under the Trust Indenture Act.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.8 Conflicting Interests. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by,
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and subject to the provisions of, the Trust Indenture Act and this Declaration
of Trust.
SECTION 8.9 Co-Trustees and Separate 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 Property may at the time be located,
the Depositor and the Administrative Trustees, by agreed action of the majority
of such Trustees, shall have power to appoint, and upon the written request of
the Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law 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 the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Debenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor.
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Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act
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or omission of the Property Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be required to supervise any
co-trustee or separate trustee nor shall it be liable by reason of any act of a
co-trustee or separate trustee or any employees or agents of a co-trustee or
separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10 Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, a Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Outstanding Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Trust). An Administrative
Trustee may be removed by Act of the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause,
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at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Capital Securityholders, by
Act of the Capital Securityholders of a majority in Liquidation Amount of the
Capital Securities then Outstanding delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and such
successor Trustee shall comply with the applicable requirements of Section 8.11.
If an Administrative Trustee shall resign, be removed or become incapable of
acting as Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to the Administrative Trustee, shall promptly
appoint a successor Administrative Trustee or Administrative Trustees and such
successor Administrative Trustee or Trustees shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Common Securityholder or the Capital Securityholders and
accepted appointment in the manner required by Section 8.11, any Securityholder
who has been a Securityholder of Trust Securities for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.08 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration of Trust, in the event any Administrative Trustee or a Delaware
Trustee who is a
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natural person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of remaining Administrative Trustees if there
are at least two of them or (b) otherwise by the Depositor (with the successor
in each case being a Person who satisfies the eligibility requirement for
Administrative Trustees or Delaware Trustee, as the case may be, set forth in
Section 8.07).
SECTION 8.11 Acceptance of Appointment by Successor. In the case of
the appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee any instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with the rights, powers, trusts and duties of the retiring Trustee, but,
on the request of the Depositor or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee the
Property Trustee shall duly assign, transfer and deliver to the successor
Property Trustee all Trust Property and money held by such retiring Property
Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Declaration of Trust as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees if the same trust and that each such Relevant
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Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Relevant Trustee;
and upon the execution and delivery of such amendment the resignation or removal
of the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.12 Merger, Conversion, Consolidation or Succession to
Business. 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 with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Relevant Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13 Preferential Collection of Claims Against Depositor or
Trust. In case of the pendency of
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any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Trust or any other obligor upon the Trust Securities or the
property of the Trust or of such other obligor or their creditors, the Property
Trustee (irrespective of whether any Distributions on the Trust Securities shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Property Trustee shall have made any demand on the
Trust for the payment of any past due Distributions) shall be entitled and
empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute to same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to
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vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.14 Reports by Property Trustee. Upon qualification of this
Declaration of Trust under the Trust Indenture Act,
(a) Not later than the last calendar day in February of each year
commencing with the last calendar day in February of 1999, the Property Trustee
shall transmit to all Securityholders in accordance with Section 10.09, and to
the Depositor, a brief report dated as of the prior December 31 with respect to:
(i) its eligibility under Section 8.07 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects
the Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Declaration of Trust as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the NASDAQ National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Depositor.
SECTION 8.15 Reports to the Property Trustee. Upon qualification of
this Indenture under the Trust Indenture Act, the Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if
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any) and the compliance certificate required by Section 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 8.16 Evidence of Compliance with Conditions Precedent. Upon
qualification of this Indenture under the Trust Indenture Act, each of the
Depositor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration of Trust that relate to any
of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
SECTION 8.17 Number of Trustees. (a) The number of Trustees shall be
four; provided that the Holder of all of the Common Securities by written
instrument may increase or decrease the number of Administrative Trustees. The
Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filed with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustee
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
Provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration of Trust.
SECTION 8.18 Delegation of Power. (a) Any Administrative Trustee
may, by power of attorney
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consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.07(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) The Administrative Trustee shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Declaration of Trust, as
set forth herein.
ARTICLE IX
Termination, Liquidation and Merger
SECTION 9.1 Termination Upon Expiration Date; Termination Upon
Special Event. Unless earlier terminated, the Trust shall automatically
terminate on December 31, 2037 (the "Expiration Date"), following the
distribution of the Trust Property in accordance with Section 9.04.
SECTION 9.2 Early Termination. The first to occur of any of the
following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor or the Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the
Depositor, as borrower with respect to the Junior Subordinated Debt Securities,
at any time (which direction is optional and wholly within the discretion of the
Depositor subject to receipt of prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal Reserve
(including upon the occurrence and continuation of a Special Event in respect of
the Trust)) to terminate
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the Trust and, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, distribute a Like Amount of the Junior Subordinated
Debt Securities to Securityholders;
(c) the redemption of all of the Trust Securities in connection with
the redemption of all the Junior Subordinated Debt Securities (including upon
the occurrence and continuation of a Special Event pursuant to Section 11.07(b)
of the Indenture); and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3 Termination. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the payment of
any expenses owed by the Trust, (b) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or
upon the redemption of all of the Trust Securities pursuant to Section 4.02, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities, and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.4 Liquidation. (a) If an Early Termination Event specified
in clause (a), (b) or (d) of Section 9.02 occurs or upon the Expiration Date,
the Trust shall be liquidated by the Trustees as expeditiously as the Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, to each Securityholder a
Like Amount of Junior Subordinated Debt Securities, subject to Section 9.04(d).
Notice of liquidation shall be given by the Property Trustee by first-class
mail, postage prepaid, mailed not later than 30 nor more than 90 days prior to
the Liquidation Date to each Holder at such Holder's address appearing in the
Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date (which in the case of any liquidation
following the occurrence of
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a Special Event shall not be more than 90 days following such occurrence);
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Junior
Subordinated Debt Securities, or if Section 9.04(d) applies receive a
Liquidation Distribution, as the Administrative Trustees or the Property
Trustee shall deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order to
effect the liquidation of the Trust and distribution of the Junior Subordinated
Debt Securities to Securityholders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 45 days prior to
the Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Junior Subordinated Debt
Securities in exchange for the Outstanding Trust Securities Certificate.
(c) Except where Section 9.02(c) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Junior Subordinated
Debt Securities will be issued to Holders, upon surrender of such certificates
to the Administrative Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities accruing interest
at the rate provided for in the Junior Subordinated Debt Securities from the
last Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (or until such
certificates are so surrendered, no payments of interest or principal will be
made to the
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Holders of Trust Securities Certificates with respect to such Junior
Subordinated Debt Securities) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Junior Subordinated Debt Securities upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Junior Subordinated
Debt Securities in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and the
Trust shall be dissolved, wound-up or terminated, by the Property Trustee in
such manner as the Property Trustee determines. In such event, on the date of
the dissolution, winding-up or other termination of the Trust, Securityholders
will be entitled to receive out of the assets of the Trust available for
distribution to Securityholders after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, an amount equal to the aggregate of
Liquidation Amount plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). Holders of the Common
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as aforesaid) with
Holders of 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, and no payments shall be made with respect to the Common
Securities until Holders of Capital Securities have been paid in full. Any such
determination and liquidation by the Property Trustee shall be conclusive upon
the Securityholders and the Property Trustee shall have no liability in
connection therewith.
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SECTION 9.5 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 pursuant
to this Section 9.05. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Capital
Securities, the Property Trustee or the Delaware Trustee, the Trust may 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 Trust Securities or (b) substitutes for the Trust
Securities other securities having substantially the same terms as the Trust
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Trust Securities rank in priority with respect to distributions
and payments upon liquidation, redemption and otherwise, (ii) the Depositor
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 (if Capital 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 Trust Securities (including any Successor Securities) or, if so rated,
the Junior Subordinated Debt 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 Trust
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 Depositor has received an Opinion of Counsel to the effect that
(a) such merger,
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<PAGE> 82
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Trust 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 1940 Act and (viii)
the Depositor 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.
ARTICLE X
Miscellaneous Provisions
SECTION 10.1 Limitation of Rights of Securityholders. The death or
incapacity of any person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Declaration of Trust, nor entitle
the legal representatives or heirs of such person or any Securityholder for such
person, to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION 10.2 Liability of the Depositor. The Depositor, as borrower
with respect to the Junior Subordinated Debt Securities, shall be liable for all
the
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<PAGE> 83
debts and obligations of the Trust (other than with respect to payments of
principal, interest, or premium, if any, on the Trust Securities) to the extent
not satisfied out of the Trust's assets.
SECTION 10.3 Amendment. (a) This Declaration of Trust may be amended
from time to time by the Property Trustee, the Administrative Trustees and the
Depositor, without the consent of any Securityholders (i) to cure any ambiguity,
correct or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Declaration of Trust, which shall not be
inconsistent with the other provisions of this Declaration of Trust or (ii) to
modify, eliminate or add to any provisions of this Declaration of Trust 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 Outstanding or to ensure that the Trust will not be
required to register as an investment company under the 1940 Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of any Securityholder, and any amendments
of this Declaration of Trust shall become effective when notice thereof is given
to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any provision of
this Declaration of Trust may be amended by the Trustees and the Depositor with
(i) the consent of Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the 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
of an investment company under the 1940 Act.
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<PAGE> 84
(c) In addition to and notwithstanding any other provision in this
Declaration of Trust, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.08 hereof), this
Declaration of Trust 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 Securityholder
to institute suit for the enforcement of any such payment on or after such date.
Notwithstanding any other provision herein, without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section 6.03 or
6.08 hereof), this paragraph (c) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Declaration of
Trust, no Trustee shall enter into or consent to any amendment to this
Declaration of Trust which would cause the Trust to fail or cease to qualify for
the exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Declaration of Trust to the
contrary, without the consent of the Depositor this Declaration of Trust may not
be amended in a manner which imposes any additional obligation on the Depositor.
(f) Notwithstanding any other provision of this Declaration of
Trust, no amendment to this Declaration of Trust may be made if, as a result of
such amendment, it would cause the Trust to fail to be classified as a grantor
trust for United States federal income tax purposes.
(g) In the event that any amendment to this Declaration of Trust is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
(h) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration of Trust which affects
its
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<PAGE> 85
own rights, duties or immunities under this Declaration of Trust or would
otherwise expose the Property Trustee to any liability or be contrary to
applicable law. The Property Trustee shall be entitled to receive an Opinion of
Counsel and an Officers' Certificate stating that any amendment to this
Declaration of Trust is in compliance with this Declaration of Trust.
SECTION 10.4 Separability. In case any provision in this Declaration
of Trust or in the Trust Securities Certificates 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.
SECTION 10.5 Governing Law. This Declaration of Trust and the rights
and obligations of each of the Securityholders, the Trust and the Trustees with
respect to this Declaration of Trust and the Trust Securities shall be construed
in accordance with and governed by the laws of the State of Delaware without
regard to its conflict of laws principles. The provisions of Sections 3540 and
3561 of Title 12 of the Delaware Code shall not apply to this Trust.
SECTION 10.6 Payments Due on Non-Business Day. If the date fixed for
any payment on any Trust Security shall be a day that is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day that is a Business Day (except as otherwise provided in Section
4.02(d)), with the same force and effect as though made on the date fixed for
such payment, and no interest shall accrue thereon for the period after such
date.
SECTION 10.7 Successors. This Declaration of Trust shall be binding
upon and shall inure to the benefit of any successor to the Depositor, the Trust
or the Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VI of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
79
<PAGE> 86
SECTION 10.8 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Declaration of
Trust.
SECTION 10.9 Reports, Notices and Demands. Any report, notice,
demand or other communication which by any provision of this Declaration of
Trust is required or permitted to be given or served to or upon any
Securityholder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Capital
Securityholder, to such Capital Securityholder as such Securityholder's name and
address may appear on the Securities Register, and (b) in the case of the Common
Securityholder or the Depositor, to North Fork Bancorporation, Inc., 275 Broad
Hollow Road, Melville, NY 11747, Attention: Anthony Abate, Secretary, facsimile
no.: (516) 844-1461. Any notice to Capital Securityholders may also be given to
such owners as have, within two years preceding the giving of such notice, filed
their names and addresses with the Property Trustee for that purpose. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Declaration of Trust is required or permitted to be given or served to or
upon the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to Bankers
Trust Company, Four Albany Street, 4th Floor, New York, NY 10006, Attention:
Corporate Trust and Agency Group - Corporate Market Services; (b) with respect
to the Delaware Trustee to Bankers Trust (Delaware), 1011 Centre Road, Suite
200, Wilmington, Delaware 19805-1266, Attention: Ms. Lisa Wilkins; and (c) with
respect to the Administrative Trustees, to them at the address above for notices
to the Depositor, marked "Attention: Office of the Secretary". Such notice,
demand or other communication to or upon the Trust or the Property Trustee shall
be deemed to have been sufficiently given or made only upon actual receipt of
the writing by the Trust or the Property Trustee.
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<PAGE> 87
SECTION 10.10 Agreement Not to Petition. Each of the Trustees and
the Depositor agree for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with
Article IX, they shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Laws. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.09 shall survive the
termination of this Declaration of Trust.
SECTION 10.11 Trust Indenture Act; Conflict with Trust Indenture
Act. This Declaration of Trust will not be qualified under the Trust Indenture
Act except upon the effectiveness of a registration statement. By its terms,
however, this Declaration of Trust incorporates certain provisions of the Trust
Indenture Act.
(a) This Declaration of Trust is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration of Trust
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Declaration of
Trust by any of the provisions of the Trust Indenture Act, such
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<PAGE> 88
required provision shall control. If any provision of this Declaration of Trust
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Declaration of Trust as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration
of Trust shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.12 Acceptance of Terms of Declaration of Trust, Guarantee
and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION OF TRUST
AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE
AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION
OF TRUST SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
NORTH FORK BANCORPORATION,
INC., Depositor
by
----------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as
Property Trustee
by
----------------------------------
Name:
Title:
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<PAGE> 89
BANKERS TRUST (DELAWARE), as
Delaware Trustee and not in
its individual capacity
by
----------------------------------
Name:
Title:
--------------------------------------
Daniel M. Healy,
as Administrative Trustee
--------------------------------------
John N. DiGiacomo,
as Administrative Trustee
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<PAGE> 90
EXHIBIT A
CERTIFICATE OF TRUST OF
NORTH FORK CAPITAL TRUST III
THIS CERTIFICATE OF TRUST of North Fork Capital Trust III (the "Trust"), dated
as of November , 1997, is being duly executed and filed by Bankers Trust
(Delaware), a Delaware banking corporation, as trustee. Daniel M. Healy, an
individual, as trustee and John N. DiGiacomo, an individual, as trustee to form
a business trust under the Delaware Business Trust Act (12 Del. C. Section 3801
et seq.).
1. Name. The name of the business trust formed hereby is North Fork
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are as
follows: Bankers Trust (Delaware), 1001 Jefferson Street, Suite 550, Wilmington,
Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
4. Duration. The Trust created hereby shall terminate on
November , 2036.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first written
above.
BANKERS TRUST (DELAWARE), not
in its individual capacity but
solely as trustee
by
----------------------------------
Name:
Title:
1
<PAGE> 91
DANIEL M. HEALY, not in his
individual capacity but solely
as trustee
--------------------------------------
JOHN N. DIGIACOMO, not in his
individual capacity but solely
as trustee
--------------------------------------
2
<PAGE> 92
EXHIBIT B
IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL SECURITIES
CERTIFICATE, INSERT--[This Capital Securities Certificate is a Global Capital
Securities Certificate within the meaning of the Declaration of Trust
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depositary") or a nominee of the Depositary. This Capital
Securities Certificate is exchangeable for 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 Capital Securities Certificate (other than a transfer of this
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 Capital Securities Certificate is presented by an
authorized representative of The Depositary Trust Company (55 Water Street, New
York) to North Fork Capital Trust III or its agent for registration of transfer,
exchange or payment, and any 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.]
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 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,
1
<PAGE> 93
95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THIS 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> 94
Liquidation Amount of
Certificate Number Capital Securities
CUSIP NO. [ ]
Certificate Evidencing Capital Securities
of
North Fork Capital Trust III
% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
North Fork Capital Trust III, 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 _________ ( ) Capital
Securities of the Trust representing an undivided beneficial interest in the
assets of Trust and has designated North Fork Capital Trust III ____ Capital
Securities (Liquidation Amount $1,000 per Capital Security) (the "Capital
Securities"). The 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
Capital Securities are set forth in, and this certificate and the 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 November , 1997, 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 Capital Securities as set forth therein. The Holder
is entitled to the benefits of the Guarantee Agreement entered into by North
Fork Bancorporation, Inc., a corporation, and Bankers Trust Company, as
Guarantee trustee, dated as of November , 1997, (the "Guarantee"), to the extent
provided therein. The Trust will furnish a copy of the Declaration of Trust and
the Guarantee to the Holder without charge upon
3
<PAGE> 95
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 III
by
----------------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
----------------------------------
Authorized Signatory
4
<PAGE> 96
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
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 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 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> 97
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Liquidation Amount of
Certificate Number Common Securities
Certificate Evidencing Common Securities
of
North Fork Capital Trust III
% Common Securities
(Liquidation Amount $1,000 per Common Security)
North Fork Capital Trust III, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
North Fork Bancorporation, Inc. (the "Holder") is the registered owner of ( )
common securities of the Trust representing beneficial interests of the Trust
and designated the ___ Common Securities (Liquidation Amount $1,000 per Common
Security) (the "Common Securities"). Except as provided in Section 5.11 of the
Declaration of Trust (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented 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 November , 1997, 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 the Common Securities as set forth therein. The
Trust will furnish a copy of the Declaration of Trust to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
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<PAGE> 98
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this __ day of ________, ___.
NORTH FORK CAPITAL TRUST III
by
----------------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
----------------------------------
Authorized Signatory
2
<PAGE> 1
EXHIBIT 4.8
================================================================================
GUARANTEE AGREEMENT
Between
NORTH FORK BANCORPORATION, INC.
as (Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
Dated as of
November __, 1997
================================================================================
<PAGE> 2
CROSS REFERENCE TABLE */
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
310(a) ...................................................... 4.01(a)
310(b) ...................................................... 4.01(c), 2.08
310(c) ...................................................... Inapplicable
311(a) ...................................................... 2.02(b)
311(b) ...................................................... 2.02(b)
311(c) ...................................................... Inapplicable
312(a) ...................................................... 2.02(a)
312(b) ...................................................... 2.02(b)
313 ...................................................... 2.03
314(a) ...................................................... 2.04
314(b) ...................................................... Inapplicable
314(c) ...................................................... 2.05
314(d) ...................................................... Inapplicable
314(e) ...................................................... 1.01, 2.05
...................................................... 3.02
314(f) ...................................................... 2.01, 3.02
315(a) ...................................................... 3.01(d)
315(b) ...................................................... 2.07
315(c) ...................................................... 3.01
315(d) ...................................................... 3.01(d)
316(a) ...................................................... 1.01, 2.06,
...................................................... 5.04
316(b) ...................................................... 5.03
316(c) ...................................................... Inapplicable
317(a) ...................................................... Inapplicable
317(b) ...................................................... Inapplicable
318(a) ...................................................... 2.01(b)
- ----------
*/ This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE> 3
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.1. Definitions............................................... 2
ARTICLE II
Trust Indenture Act
SECTION 2.1. Trust Indenture Act; Application.......................... 5
SECTION 2.2. List of Holders........................................... 5
SECTION 2.3. Reports by the Guarantee Trustee.......................... 6
SECTION 2.4. Periodic Reports to the Guarantee
Trustee............................................. 6
SECTION 2.5. Evidence of Compliance with Conditions
Precedent........................................... 6
SECTION 2.6. Events of Default; Waiver................................. 6
SECTION 2.7. Event of Default; Notice.................................. 6
SECTION 2.8. Conflicting Interests..................................... 7
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
SECTION 3.1. Powers and Duties of the Guarantee Trustee................ 7
SECTION 3.2. Certain Rights of Guarantee Trustee....................... 9
SECTION 3.3. Indemnity................................................. 11
SECTION 3.4. Expenses.................................................. 11
ARTICLE IV
Guarantee Trustee
SECTION 4.1. Guarantee Trustee; Eligibility............................ 11
SECTION 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee................................... 12
ARTICLE V
Guarantee
SECTION 5.1. Guarantee................................................. 13
SECTION 5.2. Waiver of Notice and Demand............................... 13
SECTION 5.3. Obligations Not Affected.................................. 13
SECTION 5.4. Rights of Holders......................................... 14
i
<PAGE> 4
SECTION 5.5. Guarantee of Payment...................................... 14
SECTION 5.6. Subrogation............................................... 15
SECTION 5.7. Independent Obligations................................... 15
ARTICLE VI
Covenants and Subordination
SECTION 6.1. Subordination............................................. 15
SECTION 6.2. Pari Passu Guarantees..................................... 15
ARTICLE VII
Termination
SECTION 7.1. Termination............................................... 16
ARTICLE VIII
Miscellaneous
SECTION 8.1. Successors and Assigns.................................... 16
SECTION 8.2. Amendments................................................ 16
SECTION 8.3. Notices................................................... 16
SECTION 8.4. Benefit................................................... 18
SECTION 8.5. Interpretation............................................ 18
SECTION 8.6. Governing Law............................................. 18
ii
<PAGE> 5
GUARANTEE AGREEMENT, dated as of November __, 1997,
executed and delivered by NORTH FORK BANCORPORATION, INC., a
bank holding company (the "Guarantor") having its principal
office at 275 Broad Hollow Road, Melville, NY 11747, and
BANKERS TRUST COMPANY, a New York banking corporation, as
trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Trust
Securities (as defined herein) of NORTH FORK CAPITAL TRUST II,
a Delaware statutory business trust (the "Issuer").
WHEREAS pursuant to an Amended and Restated Declaration of Trust
(the "Declaration of Trust"), dated as of November __, 1997, among the Trustees
named therein, the Guarantor, as Depositor, and the Holders from time to time of
undivided beneficial ownership interests in the assets of the Issuer, the Issuer
is issuing $__________ aggregate liquidation amount of its ___% Capital
Securities, liquidation amount $1,000 per Security (the "Capital Securities")
and $_________ of aggregate liquidation amount of Common Securities, liquidation
amount $1,000 per security (the "Common Securities" and collectively with the
Capital Securities, the "Trust Securities") representing undivided beneficial
ownership interests in the assets of the Issuer and having the terms set forth
in the Declaration of Trust;
WHEREAS the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used by the Issuer to purchase the Junior Subordinated
Debt Securities due ____, ____ (as defined in the Declaration of Trust) (the
"Junior Subordinated Debt Securities") of the Guarantor, which will be held by
Bankers Trust Company, as Property Trustee under the Declaration of Trust, as
trust assets; and
WHEREAS as incentive for the Holders to purchase Trust Securities
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the purchase by each Holder,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the benefit of the
Holders from time to time of the Trust Securities.
<PAGE> 6
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Declaration of Trust as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capital Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Common Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Debt" shall have the meaning specified in the Indenture.
"Declaration of Trust" shall have the meaning specified in the first
whereas clause of this Guarantee Agreement.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice; provided, further, that no
Event of Default shall occur unless an Event of Default (as defined in the
Indenture or the Declaration) shall have occurred and be continuing.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Securities, to the extent not
paid or made by or on
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behalf of the Issuer: (i) any accrued and unpaid Distributions required to be
paid on the Trust Securities, to the extent the Issuer shall have funds on hand
available therefor at such time, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to the Trust Securities called for redemption by the
Issuer to the extent the Issuer shall have funds on hand available therefor at
such time, and (iii) upon a voluntary or involuntary termination, winding-up or
liquidation of the Issuer, unless Junior Subordinated Debt Securities are
distributed to the Holders, the lesser of (a) the aggregate of the liquidation
amount of $1,000 per Trust Security plus accrued and unpaid Distributions to the
date of payment to the extent the Issuer shall have funds on hand available to
make such payment at such time and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution"). If an Event of Default under the
Declaration has occurred and is continuing, no Guarantee Payments with respect
to the Common Securities or any guarantee payment under any Other Guarantees (as
defined in the Indenture) with respect to Common Securities of any other North
Fork Capital Trust (as defined in the Indenture), if any, shall be made until
the Holders of Capital Securities shall be paid in full the Guarantee Payments
to which they are entitled under this Guarantee. Subordination of Guarantee
Payments on the Common Securities following such an Event of Default under the
Declaration shall be analogous to the subordination of the Common Securities
provided for in Section 4.03 of the Declaration.
"Guarantee Trustee" means Bankers Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first recital of
this Guarantee Agreement.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Trust Securities; provided, however, that in determining
whether the holders of the requisite percentage of Trust Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
December 31, 1996, as supplemented and amended, between the Guarantor and
Bankers Trust Company, as
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trustee, relating to the issuance of the Junior Subordinated Debt Securities.
"Issuer" shall have the meaning specified in the first recital of
this Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority in Liquidation Amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting separately
as a class, of more than 50% of the aggregate Liquidation Amount of all then
Outstanding Trust Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer and President or
a Vice President, and by the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary of such
Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Responsible Officer" when used with respect to the Guarantee
Trustee means any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Guarantee Agreement, and also, with respect to a particular matter,
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any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Senior Debt" shall have the meaning specified in the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
"Trust Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application. (a) This Guarantee
Agreement will not be qualified under the Trust Indenture Act except upon the
effectiveness of a registration statement with respect to this Guarantee
Agreement pursuant to a registration rights agreement as contemplated in Article
XII of the Indenture.
(b) Upon qualification under the Trust Indenture Act as contemplated
in clause (a) above, if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.02. List of Holders. (a) The Guarantor shall furnish or
cause to be furnished to the Guarantee Trustee (i) semiannually, not more than
15 days after May 15 and November 15 of each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information is in
the possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
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(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Guarantee Trustee. Not later than the
last calendar day in February of each calendar year, commencing with the last
calendar day in February 1999, the Guarantee Trustee shall provide to the
Holders such reports, if any, as are required by Section 313 of the Trust
Indenture Act in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to the Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by any officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a Majority
in Liquidation Amount of the Securities may, by vote, on behalf of the Holders,
waive any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
SECTION 2.07. Event of Default; Notice. (a) The Guarantee Trustee
shall, within 90 days after the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders, notices of all Events of
Default known to the Guarantee Trustee, unless such Events of Default have been
cured before the giving of such notice; provided, that, except in the case of a
default in the payment of a Guarantee Payment, the Guarantee Trustee shall
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be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors and/or a
Responsible Officer in good faith determines that the withholding of such notice
is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless a Responsible Officer charged with the
administration of the Declaration of Trust shall have received written notice of
such Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration of Trust shall
be deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of the
Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee Trustee. (a) This
Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of
the Holders, and the Guarantee Trustee shall not transfer this Guarantee
Agreement to any Person except a Holder exercising his or her rights pursuant to
Section 5.04(iv) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.06), the
Guarantee
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Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own wilful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the case of
any such certificates or opinions that by any provision hereof
or of the Trust Indenture Act are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee
Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy
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available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not assured to it under the terms of this Guarantee Agreement
or indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
SECTION 3.02. Certain Rights of Guarantee Trustee. (a) Subject to
the provisions of Section 3.01:
(i) The Guarantee Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by all Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the
advice or written opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its Affiliates
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and may be one of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such security and indemnity reasonably
satisfactory to it, against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as may
be requested by the Guarantee Trustee; provided, that nothing contained in
this Section 3.02(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received and (C) shall be
fully protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the
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Guarantee Trustee to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
SECTION 3.03. Indemnity. The Guarantor agrees to indemnify the
Guarantee Trustee and its directors, officers, agents and employees for, and to
hold them harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of or
in connection with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Guarantee Trustee will not claim or exact any lien or
charge on any Guarantee Payments as a result of any amount due to it under this
Guarantee Agreement. This indemnity shall survive the termination of this
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
SECTION 3.04. Expenses. The Guarantor, as obligor on the Junior
Subordinated Debt Securities, shall from time to time reimburse the Guarantee
Trustee for its reasonable expenses and costs incurred in connection with the
performance of its duties hereunder.
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Guarantee Trustee; Eligibility. (a) There shall at all
times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of
Section 310(c) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then, for the
purposes of this Section and to the extent permitted by
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the Trust Indenture Act, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and Surplus as set
forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.10(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of the Guarantee
Trustee. (a) Subject to Section 4.02(b), in the absence of the existence of an
Event of Default, the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
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ARTICLE V
Guarantee
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the Issuer),
as and when due, regardless of any defense, right of set-off or counterclaim
which the Issuer may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders. The Guarantor shall give prompt written notice to the Guarantee Trustee
in the event it makes any direct payment hereunder.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of the Guarantee Agreement and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Guarantee Trustee, Issuer or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Trust Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions (other than any extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Junior Subordinated Debt Securities as so provided
in the Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Trust Securities or the extension of
time for the performance of any other obligation under, arising out of, or
in connection with, the Trust Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or
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exercise any right, privilege, power or remedy conferred on the Holders
pursuant to the terms of the Trust Securities, or any action on the part
of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Trust
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Amount of the Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of this Guarantee
Agreement or exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and (iv) any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal proceeding against the
Issuer or any other Person.
SECTION 5.05. Guarantee of Payment. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer) or
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upon distribution of Junior Subordinated Debt Securities to Holders as provided
in the Declaration of Trust.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders against the Issuer in respect of any amounts paid
to the Holders by the Guarantor under this Guarantee Agreement and shall have
the right to waive payment by the Issuer pursuant to Section 5.01; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Trust Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
Covenants and Subordination
SECTION 6.01. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank subordinate
and junior in right of payment to all Senior Debt of the Guarantor, to the same
extent and in the same manner that the Junior Subordinated Debt Securities are
subordinated to Senior Debt pursuant to the Indenture, it being understood that
the terms of Article XIV of the Indenture shall apply to the obligations of the
Guarantor under this Guarantee Agreement as if (x) such Article XIV were set
forth herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XIV.
SECTION 6.02. Pari Passu Guarantees. This Guarantee Agreement shall
rank pari passu with any similar guarantee agreements issued by the Guarantor on
behalf of the holders of trust securities issued by a trust created by the
Guarantor similar to North Fork Capital Trust II.
15
<PAGE> 20
ARTICLE VII
Termination
SECTION 7.01. Termination. This Guarantee Agreement shall terminate
and be of no further force and effect upon (i) full payment of the Redemption
Price of all Trust Securities, (ii) the distribution of Junior Subordinated Debt
Securities to the Holders in exchange for all of the Trust Securities or (iii)
full payment of the amounts payable in accordance with the Declaration of Trust
upon liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must repay any sums paid with respect to Trust
Securities or this Guarantee Agreement.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Guarantor's obligations hereunder, the Guarantor shall
not assign its obligations hereunder.
SECTION 8.02. Amendments. Except with respect to any changes which
do not adversely affect the rights of the Holders in any material respect (in
which case no consent of the Holders will be required), this Guarantee Agreement
may only be amended with the prior approval of the Holders of not less than a
Majority in Liquidation Amount of the Securities. The provisions of Article VI
of the Declaration of Trust concerning meetings of the Holders shall apply to
the giving of such approval.
SECTION 8.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duty signed
by the party giving such notice, and delivered, telecopied (confirmed by deliv-
16
<PAGE> 21
ery of the original) or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or
such other address, facsimile number or to the attention of such other
Person as the Guarantor may give notice to the Holders:
NORTH FORK BANCORPORATION, INC.
275 Broad Hollow Road
Melville, NY 11747
Facsimile No.: (516) 844-1461
Attention: Anthony Abate, Secretary
(b) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such
other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
NORTH FORK CAPITAL TRUST I
c/o NORTH FORK BANCORPORATION, INC.
275 Broad Hollow Road
Melville, NY 11747
Facsimile No.: (516) 844-1461
Attention: Anthony Abate, Secretary
with a copy to:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(d) if given to any Holder, at the address set forth on the books
and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
deliv-
17
<PAGE> 22
ery or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and is not separately transferable from the Trust
Securities.
SECTION 8.5. Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.6 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
18
<PAGE> 23
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
NORTH FORK BANCORPORATION,
INC.
by
--------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as
Guarantee Trustee,
by
--------------------------------
Name:
Title:
19
<PAGE> 1
EXHIBIT 4.9
================================================================================
GUARANTEE AGREEMENT
Between
NORTH FORK BANCORPORATION, INC.
as (Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
Dated as of
November __, 1997
================================================================================
<PAGE> 2
CROSS REFERENCE TABLE */
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
310(a) ..................................................... 4.01(a)
310(b) ..................................................... 4.01(c), 2.08
310(c) ..................................................... Inapplicable
311(a) ..................................................... 2.02(b)
311(b) ..................................................... 2.02(b)
311(c) ..................................................... Inapplicable
312(a) ..................................................... 2.02(a)
312(b) ..................................................... 2.02(b)
313 ..................................................... 2.03
314(a) ..................................................... 2.04
314(b) ..................................................... Inapplicable
314(c) ..................................................... 2.05
314(d) ..................................................... Inapplicable
314(e) ..................................................... 1.01, 2.05
3.02
314(f) ..................................................... 2.01, 3.02
315(a) ..................................................... 3.01(d)
315(b) ..................................................... 2.07
315(c) ..................................................... 3.01
315(d) ..................................................... 3.01(d)
316(a) ..................................................... 1.01, 2.06,
5.04
316(b) ..................................................... 5.03
316(c) ..................................................... Inapplicable
317(a) ..................................................... Inapplicable
317(b) ..................................................... Inapplicable
318(a) ..................................................... 2.01(b)
- ----------
*/ This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE> 3
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.1. Definitions.................................................... 2
ARTICLE II
Trust Indenture Act
SECTION 2.1. Trust Indenture Act; Application............................... 5
SECTION 2.2. List of Holders................................................ 5
SECTION 2.3. Reports by the Guarantee Trustee............................... 6
SECTION 2.4. Periodic Reports to the Guarantee
Trustee.................................................. 6
SECTION 2.5. Evidence of Compliance with Conditions
Precedent................................................ 6
SECTION 2.6. Events of Default; Waiver...................................... 6
SECTION 2.7. Event of Default; Notice....................................... 6
SECTION 2.8. Conflicting Interests.......................................... 7
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
SECTION 3.1. Powers and Duties of the Guarantee Trustee..................... 7
SECTION 3.2. Certain Rights of Guarantee Trustee............................ 9
SECTION 3.3. Indemnity...................................................... 11
SECTION 3.4. Expenses....................................................... 11
ARTICLE IV
Guarantee Trustee
SECTION 4.1. Guarantee Trustee; Eligibility................................. 11
SECTION 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee........................................ 12
ARTICLE V
Guarantee
SECTION 5.1. Guarantee...................................................... 13
SECTION 5.2. Waiver of Notice and Demand.................................... 13
SECTION 5.3. Obligations Not Affected....................................... 13
SECTION 5.4. Rights of Holders.............................................. 14
i
<PAGE> 4
SECTION 5.5. Guarantee of Payment........................................... 14
SECTION 5.6. Subrogation.................................................... 15
SECTION 5.7. Independent Obligations........................................ 15
ARTICLE VI
Covenants and Subordination
SECTION 6.1. Subordination.................................................. 15
SECTION 6.2. Pari Passu Guarantees.......................................... 15
ARTICLE VII
Termination
SECTION 7.1. Termination.................................................... 16
ARTICLE VIII
Miscellaneous
SECTION 8.1. Successors and Assigns......................................... 16
SECTION 8.2. Amendments..................................................... 16
SECTION 8.3. Notices........................................................ 16
SECTION 8.4. Benefit........................................................ 18
SECTION 8.5. Interpretation................................................. 18
SECTION 8.6. Governing Law.................................................. 18
ii
<PAGE> 5
GUARANTEE AGREEMENT, dated as of November __, 1997,
executed and delivered by NORTH FORK BANCORPORATION, INC., a
bank holding company (the "Guarantor") having its principal
office at 275 Broad Hollow Road, Melville, NY 11747, and
BANKERS TRUST COMPANY, a New York banking corporation, as
trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Trust
Securities (as defined herein) of NORTH FORK CAPITAL TRUST
III, a Delaware statutory business trust (the "Issuer").
WHEREAS pursuant to an Amended and Restated Declaration of Trust
(the "Declaration of Trust"), dated as of November __, 1997, among the Trustees
named therein, the Guarantor, as Depositor, and the Holders from time to time of
undivided beneficial ownership interests in the assets of the Issuer, the Issuer
is issuing $__________ aggregate liquidation amount of its ___% Capital
Securities, liquidation amount $1,000 per Security (the "Capital Securities")
and $_________ of aggregate liquidation amount of Common Securities, liquidation
amount $1,000 per security (the "Common Securities" and collectively with the
Capital Securities, the "Trust Securities") representing undivided beneficial
ownership interests in the assets of the Issuer and having the terms set forth
in the Declaration of Trust;
WHEREAS the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used by the Issuer to purchase the Junior Subordinated
Debt Securities due ____, ____ (as defined in the Declaration of Trust) (the
"Junior Subordinated Debt Securities") of the Guarantor, which will be held by
Bankers Trust Company, as Property Trustee under the Declaration of Trust, as
trust assets; and
WHEREAS as incentive for the Holders to purchase Trust Securities
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders the Guarantee Payments (as defined here
in) and to make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the purchase by each Holder,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the benefit of the
Holders from time to time of the Trust Securities.
<PAGE> 6
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not other
wise defined herein shall have the meanings assigned to such terms in the
Declaration of Trust as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capital Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Common Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Debt" shall have the meaning specified in the Indenture.
"Declaration of Trust" shall have the meaning specified in the first
whereas clause of this Guarantee Agreement.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice; provided, further, that no
Event of Default shall occur unless an Event of Default (as defined in the
Indenture or the Declaration) shall have occurred and be continuing.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Securities, to the extent not
paid or made by or on
2
<PAGE> 7
behalf of the Issuer: (i) any accrued and unpaid Distributions required to be
paid on the Trust Securities, to the extent the Issuer shall have funds on hand
available there for at such time, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to the Trust Securities called for redemption by the
Issuer to the extent the Issuer shall have funds on hand available therefor at
such time, and (iii) upon a voluntary or involuntary termination, winding-up or
liquidation of the Issuer, unless Junior Subordinated Debt Securities are
distributed to the Holders, the lesser of (a) the aggregate of the liquidation
amount of $1,000 per Trust Security plus accrued and unpaid Distributions to
the date of payment to the extent the Issuer shall have funds on hand available
to make such payment at such time and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer
(in either case, the "Liquidation Distribution"). If an Event of Default under
the Declaration has occurred and is continuing, no Guarantee Payments with
respect to the Common Securities or any guarantee payment under any Other
Guarantees (as defined in the Indenture) with respect to Common Securities of
any other North Fork Capital Trust (as defined in the Indenture), if any, shall
be made until the Holders of Capital Securities shall be paid in full the
Guarantee Payments to which they are entitled under this Guarantee.
Subordination of Guarantee Payments on the Common Securities following such an
Event of Default under the Declaration shall be analogous to the subordination
of the Common Securities provided for in Section 4.03 of the Declaration.
"Guarantee Trustee" means Bankers Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first recital of
this Guarantee Agreement.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Trust Securities; provided, however, that in determining
whether the holders of the requisite percentage of Trust Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
December 31, 1996, as supplemented and amended, between the Guarantor and
Bankers Trust Company, as
3
<PAGE> 8
trustee, relating to the issuance of the Junior Subordinated Debt Securities.
"Issuer" shall have the meaning specified in the first recital of
this Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority in Liquidation Amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting separately
as a class, of more than 50% of the aggregate Liquidation Amount of all then Out
standing Trust Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer and President or
a Vice President, and by the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary of such
Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Responsible Officer" when used with respect to the Guarantee
Trustee means any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Guarantee Agreement, and also, with respect to a particular matter,
4
<PAGE> 9
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Senior Debt" shall have the meaning specified in the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
"Trust Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application. (a) This Guarantee
Agreement will not be qualified under the Trust Indenture Act except upon the
effectiveness of a registration statement with respect to this Guarantee
Agreement pursuant to a registration rights agreement as contemplated in
Article XII of the Indenture.
(b) Upon qualification under the Trust Indenture Act as contemplated
in clause (a) above, if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.02. List of Holders. (a) The Guarantor shall furnish or
cause to be furnished to the Guarantee Trustee (i) semiannually, not more than
15 days after May 15 and November 15 of each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (ii) at such other times as the Guarantee Trustee may re
quest in writing, within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days prior to the time
such list is furnished, in each case to the extent such information is in the
possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
5
<PAGE> 10
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Guarantee Trustee. Not later than the
last calendar day in February of each calendar year, commencing with the last
calendar day in February 1999, the Guarantee Trustee shall provide to the
Holders such reports, if any, as are required by Section 313 of the Trust
Indenture Act in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to the Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by any officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a Majority
in Liquidation Amount of the Securities may, by vote, on behalf of the Holders,
waive any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
SECTION 2.07. Event of Default; Notice. (a) The Guarantee Trustee
shall, within 90 days after the occurrence of an Event of Default, transmit by
mail, first class post age prepaid, to the Holders, notices of all Events of
Default known to the Guarantee Trustee, unless such Events of Default have been
cured before the giving of such notice; provided, that, except in the case of a
default in the payment of a Guarantee Payment, the Guarantee Trustee shall
6
<PAGE> 11
be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors and/or a
Responsible Officer in good faith determines that the withholding of such notice
is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless a Responsible Officer charged with the
administration of the Declaration of Trust shall have received written notice of
such Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration of Trust shall
be deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of the
Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee Trustee. (a) This
Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of
the Holders, and the Guarantee Trustee shall not transfer this Guarantee
Agreement to any Person except a Holder exercising his or her rights pursuant to
Section 5.04(iv) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to per form only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.06), the
Guarantee
7
<PAGE> 12
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own wilful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the ex press provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions ex pressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the case of
any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act are specifically required
to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy
8
<PAGE> 13
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not assured to it under the terms of this Guarantee
Agreement or indemnity satisfactory to it against such risk or liability
is not reasonably assured to it.
SECTION 3.02. Certain Rights of Guarantee Trustee. (a) Subject to
the provisions of Section 3.01:
(i) The Guarantee Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by all Officers'
Certificate unless other wise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action here
under, the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request from the Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the
advice or written opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its Affiliates
9
<PAGE> 14
and may be one of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such security and indemnity reasonably
satisfactory to it, against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as may
be requested by the Guarantee Trustee; provided, that nothing contained in
this Section 3.02(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties here under either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received and (C) shall be
fully protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the
10
<PAGE> 15
Guarantee Trustee to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
SECTION 3.03. Indemnity. The Guarantor agrees to indemnify the
Guarantee Trustee and its directors, officers, agents and employees for, and to
hold them harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of or
in connection with the acceptance or administration of this Guarantee
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Guarantee Trustee will not claim or exact any
lien or charge on any Guarantee Payments as a result of any amount due to it
under this Guarantee Agreement. This indemnity shall survive the termination of
this Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
SECTION 3.04. Expenses. The Guarantor, as obligor on the Junior
Subordinated Debt Securities, shall from time to time reimburse the Guarantee
Trustee for its reason able expenses and costs incurred in connection with the
performance of its duties hereunder.
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Guarantee Trustee; Eligibility. (a) There shall at all
times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of
Section 310(c) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then, for the
purposes of this Section and to the extent permitted by
11
<PAGE> 16
the Trust Indenture Act, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and Surplus as set
forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.10(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of the Guarantee
Trustee. (a) Subject to Section 4.02(b), in the absence of the existence of an
Event of Default, the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
12
<PAGE> 17
ARTICLE V
Guarantee
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the Issuer),
as and when due, regardless of any defense, right of set-off or counter claim
which the Issuer may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders. The Guarantor shall give prompt written notice to the Guarantee Trustee
in the event it makes any direct payment hereunder.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of the Guarantee Agreement and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Guarantee Trustee, Issuer or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Trust Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions (other than any extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Junior Subordinated Debt Securities as so provided
in the Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Trust Securities or the extension of
time for the performance of any other obligation under, arising out of, or
in connection with, the Trust Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or
13
<PAGE> 18
exercise any right, privilege, power or remedy conferred on the Holders
pursuant to the terms of the Trust Securities, or any action on the part
of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Trust
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Amount of the Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of this Guarantee
Agreement or exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and (iv) any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal proceeding against the
Issuer or any other Person.
SECTION 5.05. Guarantee of Payment. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer) or
14
<PAGE> 19
upon distribution of Junior Subordinated Debt Securities to Holders as provided
in the Declaration of Trust.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders against the Issuer in respect of any amounts paid
to the Holders by the Guarantor under this Guarantee Agreement and shall have
the right to waive payment by the Issuer pursuant to Section 5.01; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Trust Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
Covenants and Subordination
SECTION 6.01. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank subordinate
and junior in right of payment to all Senior Debt of the Guarantor, to the same
extent and in the same manner that the Junior Subordinated Debt Securities are
subordinated to Senior Debt pursuant to the Indenture, it being understood that
the terms of Article XIV of the Indenture shall apply to the obligations of the
Guarantor under this Guarantee Agreement as if (x) such Article XIV were set
forth herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XIV.
SECTION 6.02. Pari Passu Guarantees. This Guarantee Agreement shall
rank pari passu with any similar guarantee agreements issued by the Guarantor on
behalf of
15
<PAGE> 20
the holders of trust securities issued by a trust created by the Guarantor
similar to North Fork Capital Trust III.
ARTICLE VII
Termination
SECTION 7.01. Termination. This Guarantee Agreement shall terminate
and be of no further force and effect upon (i) full payment of the Redemption
Price of all Trust Securities, (ii) the distribution of Junior Subordinated Debt
Securities to the Holders in exchange for all of the Trust Securities or (iii)
full payment of the amounts pay able in accordance with the Declaration of Trust
upon liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must repay any sums paid with respect to Trust
Securities or this Guarantee Agreement.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Guarantor's obligations hereunder, the Guarantor shall
not assign its obligations hereunder.
SECTION 8.02. Amendments. Except with respect to any changes which
do not adversely affect the rights of the Holders in any material respect (in
which case no consent of the Holders will be required), this Guarantee Agreement
may only be amended with the prior approval of the Holders of not less than a
Majority in Liquidation Amount of the Securities. The provisions of Article VI
of the Declaration of Trust concerning meetings of the Holders shall apply to
the giving of such approval.
SECTION 8.03. Notices. Any notice, request or other communication
required or permitted to be given here under shall be in writing, duty signed by
the party giving such notice, and delivered, telecopied (confirmed by deliv-
16
<PAGE> 21
ery of the original) or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or
such other address, facsimile number or to the attention of such other
Person as the Guarantor may give notice to the Holders:
NORTH FORK BANCORPORATION, INC.
275 Broad Hollow Road
Melville, NY 11747
Facsimile No.: (516) 844-1461
Attention: Anthony Abate, Secretary
(b) if given to the Issuer, in care of the Guarantee Trustee, at
the Issuer's (and the Guarantee Trustee's) address set forth below or such
other ad dress as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
NORTH FORK CAPITAL TRUST I
c/o NORTH FORK BANCORPORATION, INC.
275 Broad Hollow Road
Melville, NY 11747
Facsimile No.: (516) 844-1461
Attention: Anthony Abate, Secretary
with a copy to:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(d) if given to any Holder, at the address set forth on the books
and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
deliv-
17
<PAGE> 22
ery or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and is not separately transferable from the Trust
Securities.
SECTION 8.5. Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.6 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
18
<PAGE> 23
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
NORTH FORK BANCORPORATION,
INC.
by
--------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as
Guarantee Trustee,
by
--------------------------------
Name:
Title:
19
<PAGE> 1
EXHIBIT 12.1
I. EXCLUDING INTEREST ON DEPOSITS
<TABLE>
<CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30,
YEARS ENDED DECEMBER 31,
-------------------- --------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
--------- --------- --------- --------- -------- ------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Net income...................... $ 85,279 $ 58,353 $ 62,442 $ 67,342 $ 43,039 $12,896 $ 14,498
Extraordinary items, net of
taxes......................... -- -- -- -- -- -- --
Cumulative effect of changes in
accounting principles, net of
tax........................... -- -- -- -- -- (3,029) --
Income tax expense.............. 54,670 39,617 49,830 49,850 26,502 13,015 14,378
--------- --------- --------- --------- -------- ------- --------
Pretax earnings............... 139,949 97,970 112,272 117,192 69,541 22,882 28,876
Fix Charges:
Portion of rental expense which
approximates the interest
factor........................ 986 868 1,166 833 799 709 721
Interest on borrowed funds...... 52,771 28,597 37,923 23,923 19,937 11,925 10,032
--------- --------- --------- --------- -------- ------- --------
Total fixed charges........... 53,757 29,465 39,089 24,756 20,736 12,634 10,753
======== ======== ======== ======== ======= ======= =======
Earnings (for ratio
calculation).................. $ 193,706 $ 127,435 $ 151,361 $ 141,948 $ 90,277 $35,516 $ 39,629
======== ======== ======== ======== ======= ======= =======
Ratio of earnings to fixed
charges....................... 3.60 4.32 3.87 5.73 4.35 2.81 3.69
======== ======== ======== ======== ======= ======= =======
</TABLE>
<PAGE> 1
EXHIBIT 12.2
II. INCLUDING INTEREST ON DEPOSITS
<TABLE>
<CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30, YEARS ENDED DECEMBER 31,
---------------------- -------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
--------- --------- --------- --------- --------- --------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Net income
(loss).......... $ 85,279 $ 58,353 $ 62,442 $ 67,342 $ 43,039 $ 12,896 $ 14,498
Extraordinary
items, net of
taxes........... -- -- -- -- -- -- --
Cumulative effect
of changes in
accounting
principles, net
of tax.......... -- -- -- -- -- (3,029) --
Income tax expense
(benefit)....... 54,670 39,617 49,830 49,850 26,502 13,015 14,378
--------- --------- --------- --------- --------- --------- ---------
Pretax
earnings... 139,949 97,970 112,272 117,192 69,541 22,882 28,876
========= ========= ========= ========= ========= ========= =========
Fix Charges:
Portion of rental
expense (net of
sublease rental
income) which
approximates the
interest
factor.......... 986 868 1,166 833 799 709 721
Interest on
borrowed
funds........... 52,771 28,597 37,923 23,923 19,937 11,925 10,032
Interest on
deposits........ 99,206 102,080 136,438 116,476 92,639 105,228 165,905
--------- --------- --------- --------- --------- --------- ---------
Total fixed
charges.... 152,963 131,545 175,527 141,232 113,375 117,862 176,658
========= ========= ========= ========= ========= ========= =========
Earnings (for
ratio
calculation).... $ 292,912 $ 229,515 $ 287,799 $ 258,424 $ 182,916 $ 140,744 $ 205,534
========= ========= ========= ========= ========= ========= =========
Ration of earnings
to fixed
charges......... 1.91 1.74 1.64 1.83 1.61 1.19 1.16
========= ========= ========= ========= ========= ========= =========
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Stockholders and Board of Directors
North Fork Bancorporation, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in Amendment No. 1 to the
registration statement on Form S-3 of North Fork Bancorporation, Inc. Our report
refers to various changes in accounting principles as discussed in the notes to
the consolidated financial statements.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
New York, New York
November 20, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors of
New York Bancorp Inc.:
We consent to the inclusion of our report dated October 29, 1996, with respect
to the consolidated statements of financial condition of New York Bancorp Inc.
as of September 30, 1996 and 1995, and the related consolidated statements of
income, changes in shareholders' equity and cash flows for cash of the years in
the three-year period ended September 30, 1996, which report appears in the Form
8-K of North Fork Bancorporation Inc. dated November 20, 1997. Our report refers
to a change in accounting principles.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Jericho, New York
November 21, 1997
<PAGE> 1
EXHIBIT 23.3
SEWARD AND MONDE
CERTIFIED PUBLIC ACCOUNTANTS
296 STATE STREET
NORTH HAVEN, CONNECTICUT 06473-2165
(203) 248-9341
FAX (203) 248-5813
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to incorporation by reference in the registration statement on
Form S-3 of North Fork Bancorporation, Inc. of our report dated January 20, 1997
on our audits of the statements of condition of Branford Savings Bank as of
December 31, 1996 and 1995, and the related statements of income, changes in
stockholders' equity and cash flows for each of three years in the period ended
December 31, 1996, which report is included in The Joint Proxy
Statement/Prospectus of North Fork Bancorporation, Inc. and Branford Savings
Bank dated November 7, 1997.
Seward and Monde
North Haven, Connecticut
November 18, 1997
<PAGE> 1
EXHIBIT 23.4
[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
CONSENT OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
We hereby consent to the use of our name under the heading "Validity of
Securities" in the prospectus which forms a part of this Registration Statement
of North Fork Bancorporation, Inc. on Form S-3. 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 Securities and Exchange Commission promulgated
thereunder.
/s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
November 19, 1997
<PAGE> 1
EXHIBIT 25.1
-----------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification
no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
<TABLE>
<S> <C> <C> <C>
NORTH FORK BANCORPORATION, INC. NORTH FORK CAPITAL TRUST II
NORTH FORK CAPITAL TRUST III
(Exact name of Registrant as specified in its charter) (Exact name of Registrant as specified in its charter)
DELAWARE 11-1353410 DELAWARE Applied For
(State or other jurisdiction of (I.R.S. employer (State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.) incorporation or organization) Identification no.)
275 Broad Hollow Road c/o NORTH FORK BANCORPORATION, INC.
Melville, NY 11747 275 Broad Hollow Road
(Address, including zip code Melville, NY 11747
of principal executive offices) (Address, including zip code of
principal executive offices)
</TABLE>
Capital Securities of North Fork Capital Trust II
Capital Securities of North Fork Capital Trust III
Junior Subordinated Debt Securities of North Fork Bancorporation, Inc.
Guarantees by North Fork Bancorporation, Inc.
with respect to the above referenced Capital Securities
(Title of the indenture securities)
<PAGE> 2
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated June 21, 1995 Incorporated herein
by reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-65171, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by
referenced to Exhibit 1 filed with Form T-1
Statement, Registration No. 333-25843 and Certificate
of Amendment of the Organization Certificate of
Bankers Trust Company dated June 19, 1997, copy
attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended
on February 18, 1997, Incorporated herein by
reference to Exhibit 4 filed with Form T-1 Statement,
Registration No. 333-24509-01.
-2-
<PAGE> 3
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference
to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust
Company dated as of June 30, 1997. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 18th day
of November, 1997.
BANKERS TRUST COMPANY
By: /s/ Jason Krasilovsky
-------------------------
Jason Krasilovsky
Assistant Treasurer
-4-
<PAGE> 5
Legal Title of Bank: Bankers Trust Company Call Date: 6/30/97 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-1
City, State Zip: New York, NY 10006
11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks June 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
C400 Thou
Dollar Amounts in Thousands RCFD Bil Mil ASSETS
- --------------------------------------------------------------------------------
1. Cash and balances due from depository
institutions (from Schedule RC-A): ////////////////////////////
a. Noninterest-bearing balances and currency
and coin (1) ............................. 0081 1,724,000 1.a
b. Interest-bearing balances (2) ............ 0071 2,648,000 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule ////////////////////////////
RC-B, column A) .......................... 1754 0 2.a
b. Available-for-sale securities (from
Schedule RC-B, column D) ................. 1773 3,990,000 2.b
3. Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its Edge and Agreement
subsidiaries, and in IBFs: 1350 26,430,000 3
a. Federal funds sold ....................... ////////////////////////////
b. Securities purchased under agreements to
resell ................................... ////////////////////////////
4. Loans and lease financing receivables: ////////////////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C) ..................... RCFD 2122 17,815,000 4.a
b. LESS: Allowance for loan and lease losses RCFD 3123 723,000 4.b
c. LESS: Allocated transfer risk reserve .... RCFD 3128 0 4.c
d. Loans and leases, net of
unearned income, allowance,
and reserve (item 4.a minus
4.b and 4.c).............................. 2125 17,092,000 4.d
5. Assets held in trading accounts.............. 3545 40,350,000 5.
6. Premises and fixed assets (including
capitalized leases) ......................... 2145 937,000 6.
7. Other real estate owned (from Schedule
RC-M) ....................................... 2150 195,000 7.
8. Investments in unconsolidated subsidiaries
and associated companies (from Schedule
RC-M) ....................................... 2130 96,000 8.
9. Customers' liability to this bank on
acceptances outstanding ..................... 2155 691,000 9.
10. Intangible assets (from Schedule RC-M) ...... 2143 85,000 10.
<PAGE> 6
11. Other assets (from Schedule RC-F) ........... 2160 4,633,000 11.
12. Total assets (sum of items 1 through 11) .... 2170 98,871,000 12.
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading accounts.
<PAGE> 7
Legal Title of Bank: Bankers Trust Company Call Date: 6/30/97 ST-BK: 36-4840
FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623
Page RC-2
City, State Zip: New York, NY 10006
12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Schedule RC - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands Bil Mil
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Thou
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals
of columns A and C from
Schedule RC-E, part I) RCON 2200 18,026,000 13.a.
(1) Noninterest-bearing (1) ... RCON 6631 3,184,000 //////////////////
13.a(1)
(2) Interest-bearing............RCON 6636 14,842,000 //////////////////
13.a(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule
RC-E, part II) RCFN 2200 22,173,000 13.b.
(1) Noninterest-bearing ....... RCON 6631 1,454,000 //////////////////
13.b.(1)
(2) Interest-bearing .......... RCON 6636 20,719,000 //////////////////
13.b.(2)
14. Federal funds purchased and securities sold
under agreements to repurchase in //// 2800 14,623,000 14.
domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs: //////////////////
a. Federal funds purchased................... RCFD 0278 14.a.
b. Securities sold under agreements to
repurchase................................ RCFD 0279 14.b.
15. a. Demand notes issued to the U.S.
Treasury ................................. RCON 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D).. RCFD 3548 19,819,000 15.b.
16. Other borrowed money: //////////////////
a. With original maturity of one year or
less ..................................... RCFD 2332 6,877,000 16.a.
b. With original maturity of more than
one year.................................. A547 217,000 16.b.
c. With a remaining maturity of more than
three years............................... A548 4,848,000 16.c.
17. Mortgage indebtedness and obligations under
capitalized leases...........................
18. Bank's liability on acceptances executed and
outstanding.................................. RCFD 2920 691,000 18.
19. Subordinated notes and debentures............ RCFD 3200 1,251,000 19.
20. Other liabilities (from Schedule RC-G)....... RCFD 2930 4,872,000 20.
21. Total liabilities (sum of items 13 through
20).......................................... RCFD 2948 93,397,000 21.
22. Limited-life preferred stock and related
surplus...................................... RCFD 3282 0 22.
EQUITY CAPITAL //////////////////
23. Perpetual preferred stock and related surplus RCFD 3838 1,000,000 23.
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C> <C> <C> <C>
24. Common stock................................. RCFD 3230 1,001,000 24.
25. Surplus (exclude all surplus related to
preferred stock)............................. RCFD 3839 540,000 25.
26. a. Undivided profits and capital reserves.... RCFD 3632 3,314,000 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities............. RCFD 8434 (3,000) 26.b.
27. Cumulative foreign currency translation
adjustments.................................. RCFD 3284 (378,000) 27.
28. Total equity capital (sum of items 23 through
27).......................................... RCFD 3210 5,474,000 28.
29. Total liabilities, limited-life preferred
stock, and equity capital (sum of items 21, //////////////////
22, and 28).................................. RCFD 3300 98,871,000 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of
the statement below that best describes the
most comprehensive level of auditing work
performed for the bank by independent NUMBER
external auditors as of any date during ------
1996......................................... RCFD 6724 N/A M.1
</TABLE>
1 = Independent audit of the bank 4 = Directors' examination of the bank
conducted in accordance with performed by other external auditors
generally accepted auditing (may be required by state chartering
standards by a certified public authority)
accounting firm which submits a 5 = Review of the bank's financial
report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's financial
parent holding company conducted statements by external auditors
in accordance with generally 7 = Other audit procedures (excluding
accepted auditing standards by a tax preparation work)
certified public accounting firm 8 = No external audit work
which submits a report on the
consolidated holding company (but
not on the bank separately)
3 = Directors' examination of the bank
conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required
by state chartering authority)
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 9
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 27th day of June in the Year of our Lord one
thousand nine hundred and ninety-seven.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE> 10
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
<PAGE> 11
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
-------------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
-------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
-------------------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
- ----------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
